Official Luthiers Forum!

There's generally no intellectual property right in the way things look. So if you come up with something that looks cool, there's generally nothing to stop me from making something that looks similar.

There are a couple of exceptions. One is copyright. If your design is so cool that it is an original creative work, you get some protection. But not every little artistic flare on a musicial instrument is going to qualify as an original creative work.

The other main exception, which is important here, is trademark or trade dress. This is protected under a federal law called the Lanham Act, but is also protected under some state common law as well. The gist of it is that I can't make my product look like your product so much that people are likely to buy mine thinking its yours. The point is to make sure people don't inadvertently pay $10,000 for a nice Rolexo watch, thinking it's a Rolex.

Which brings us to the PRS/Gibson dispute. Gibson claimed that the PRS single cutaway model looked too much like a Gibson Les Paul. The court said that unless there is reason to believe buyers are actually being confused at the "point of sale" (i.e., buying a PRS on the mistaken belief that it is a Gibson), then Gibson can't complain about the fact that there are visual similarities. Actual confusion at the point of sale seems to be the critical factor. The court relied on the following admission from Gibson's counsel during argument to demonstrate that there was no actual confusion:

"You're dealing with, you're absolutely right, very sophisticated consumers here. They're sophisticated both at the, at looking for that shape, and they're sophisticated when they buy this. There's no question when they buy this [i.e., either a PRS Singlecut or a Gibson Les Paul], you'd have to be an idiot not to know which guitar you're buying. There's labels on it, hang tags, you pay $3000, we understand that."

As for Taylor's bridge design, it sounds like the issue is whether a buyer would think he is buying a Taylor just because the bridge looks like Taylor's bridge.

   You have to be very carefull, If you imply that what you have is a tele strat or other Intel prop of a copywrited or patented item you can't win.
    While all these words are mainstream they are still related to the fender product line. I agree it is a touchy and gray area but it is still the right that is tended to them under the law in the courts.
     This is why you see so few CF Martin logos . As soon as you do on ebay the CF Martin co will have ebay kill the auction as that is a protected property . If in fact you would have a CF Martin logo on a guitar that is not a true Martin , they can confiscate and destroy it as it is a counterfiet item.
    The lawyer will help you so you can stay out of trouble. I know it may sound trite but sometimes things aren't like they seem.
   I wish you well
john

It seems that apparently Ron Kirns contention has to do with the fact that he says he has been making fender based templates for 6 years and probably thinks that he was the first on eBay to sell templates based on fender designs...most of his listings on eBay are very defensive about his position and seems somewhat derogatory toward others that would also sell and make parts and templates for fender based designs.

eBay's fraud prevention service only allows you to enter an item number that you believe violates the law but then does not give you opportunity to explain what about that listing is in question. I have reported listings in which Brazilian Rosewood was being sold from Brazil and in the listing it stated something like "just cut" or "still needs to dry" which means that not only was that BRW not legal to sell anywhere outside of Brazil, it was recently harvested...because I could not explain the seller continues to sell but amended listings to say pre-ban and protects the identity of the bidders...

It seems that in this case a "power seller" who complains may be viewed differently than any one else that would report a listing that is suspected of being banned or illegal.

I am surprised that Fender and other companies have not pursued some eBay sellers that sell things like headstock decals, neckplates and such that are intended to make the instrument appear to be a genuine manufacturers product...Shawn38616.0494560185

O.K. I don't realy "hate" Ebay but they do at times seem to have double standards. They are also difficult to get in touch with...everyone has the authority to say "no" and the person who has the intelligence to handle the situation and say "yes" is never available.

Maybe I realy do "Hate" Ebay! Nahhh I just dislike them alot...Another example of big money gone wild and out of control. Ebay cares very little about the consumer...they care mostly about Ebay...what else is new?

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Dave Bland

remember...

"If it doesn't play in tune...it's just pretty wood"

the same way at my insurance company, the DMV, the video store, and everywhere else.

It is an epidemic.

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Brock Poling
Columbus, Ohio
http://www.polingguitars.com

I'm glad to see that some judges are approaching the IP battle with a little common sense. PRS link


The PRS guitar didn't look a dang thing like a Les Paul, so the suit was insane to begin with. Maybe gibson should have paid attention back when Ibanez was making direct copies?

I think design patents are the craziest things going. Look at a book of old guitars, and you'll see that the Gibson headstock is very old, and the Fender headstock is very old. So they just copied someone else. Nobody ever bought a Les Paul copy or a Strat copy and thought it was the real thing.

And now, some other countries are actually going after people who buy fake designer clothes, purses, and sunglasses. Intellecutal property laws need to protect society at large and not just the property rights holders alone. I'm not paying my taxes to fund police to track down someone wearing a cheap knockoff rolex or downloading mp3's. I'll take my chances with the anarchy of the marketplace on those fronts.

Derek, there probably are several people on this forum who could give you pointers on the wording you need for your response, but they would need much more detail about what already has transpired in order to provide effective advice.

If your ebay business is more than a hobby, that is, you are earning your living from it, then you actually do need an attorney to help you with your response. An initial consultation with an attorney is not terribly expensive and at the end of it you would have a much better idea of your legal standing in the matter and how to pursue it further.

With all due respect to Eric, I have to observe that there is no anarchy in the market place. Oh, there are anarchists around, but they are the ones being arrested for dealing in counterfeits.

In addition to the laws society has enacted to govern commerce, there are a whole set of laws imposed by nature. In a free society with minimal rules on the market place, the natural laws prevail. IE superior products at competitive prices prevail, to name one.

Moreover, our society in the USA was founded on the basis of protecting the rights of the individual to own and exercise control of property, including unique and original ideas. We sometimes may argue over whether those ideas really are original and unique, but there's no doubt that someone can own them has the right to control them once ownership has been established.

Actually, according to one of my cop friends, you're paying your taxes to fund extra protection for the local donut shop.

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D..

Hi,

A few minor corrections:

1) Harley attempted to trademark their sound, but quit when they realized that, legally speaking, they could not define their sound within the letter of the law.

2) A few big trademark owners, Fender being one, have an agreement with eBay whereby they, not eBay, have direct access to the database to delete auctions that violate their trademarks.

I hope that I have not ruined anybodys lunch.

Guitar Ed