I'll be interested to see what happens.

It seems to me that the shape of a guitar body is something that would be covered by a design patent, rather than a utility patent. If Fender doesn't have an unexpired design patent on the shape, I don't see how they would expect to have legal leverage.

It's also possible that they're trying to use trademark law, rather than patent law to claim legal protection. My recollection is that there was a lawsuit some years ago between Gibson and Elderly instruments concerning inlay patterns used on Gibson banjos. Because Gibson had abandoned the pre-war inlay patterns after World War 2, I believe that Elderly won the lawsuit. Fender may be taking a position that the shape is covered by a trademark.

In recent years, I believe that there have been a number of changes in the laws that cover intellectual property, so there's no telling how this might play out.

From what I read, Fender would have significant difficulty applying its recent EU victory in the US.

The German case was based not on trademark (on which Fender has already lost in the US) but on an aspect of copyright law that doesn't existin the US (to the best of my knowledge). According to my quick Google search (I know, I know): "U.S. copyright law cautions that utilitarian objects aren't subject to copyright unless expressive design elements can be completely separated from the item's function. Courts will likely scrutinize whether the curves and horns of a Strat are artistic or dictated by ergonomics and playability." I believe the Strat shape - besides originally being distinctive - is also highly ergonomic. It's well-balanced. Arm bevel on the front and belly bevel on the back contribute to comfort and playability.

It's not true that Fender has not cared about use of the shape for 70 years. But they did do nothing about it for 50 years! They tried to register the shape in 2004. The filing was ultimately rejected in 2009 -- because the court found by then it had become generic (because of Fender's failure to challenge others using it).

Watch this video, in which a YouTuber who calls his channel Blues Lawyer Confessional explains why Fender's victory in the German court is essentially meaningless. Short version: The Chinese defendant failed to show, so Fender won by default. Victories by default are not on the merits. So the claim is not validated and no rights are won.

I'm all for companies protecting what is theirs, and fwiw Fender seems mostly concerned with exact clones (s-shaped body, same shape pickguard, precise location of knobs). I just feel for the small shops who have made them for decades without issue only now being hit with this and can't afford to go to court over it. I guess moving a knob slightly, adjusting a beveled edge, or trimming the shape of a pick guard could be an easy enough solution.

Banjo playing IP lawyer here. I love this stuff! Old Hickory is right--this case was based on German/EU copyright law, which differs from US copyright law. It didn't have anything to do with patents. RB3 is right that the guitar body design could be covered by a design patent; it could not be covered by a utility patent. But a design patent also doesn't protect utilitarian features either, similar to copyright. So if one could actually show the Strat shape is functional, they could knock out design patent and copyright protection (under US law).

Fender has a registered trademark for the Strat head but apparently not for the body (except for in video games). Gibson has used trademark law to enforce its Les Paul designs with some success. See Gibson Guitar Corp. v. Paul Reed Smith Guitars, LP, 311 F. Supp. 2d 690 (M.D. Tenn. 2004). I think in the US Fender could potentially claim common law trademark rights in the Strat shape--including all the features like pick guard shape etc.--because it is so recognizably a Fender product.

Copyright and trademark, for some reason, is very confusing to the general public in the US. Even on the most basic level.

Just seems sort of odd to me that a default ruling in Germany would give them the sack of marbles to issue cease and desist to US builders. Is it a hollow bully tactic, some broader strategy, or a bonehead idea that wasn't thought through?

Yeah localhost, I agree. There's nothing about the German ruling that would give Fender the right to do anything in the US. IP laws are country-specific. I would like to see a copy of whatever c/d letter Fender is sending to US makers.

The Gibson banjo necks made by third parties have always fascinated me. Gibson just must not care at all about banjos, because putting "Gibson" on a headstock not made by Gibson is otherwise clear trademark infringement. You couldn't make a guitar and put "Fender" on the headstock and get away with it.

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Originally posted by localhost

Just seems sort of odd to me that a default ruling in Germany would give them the sack of marbles to issue cease and desist to US builders. Is it a hollow bully tactic, some broader strategy, or a bonehead idea that wasn't thought through?

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It is my understanding that anyone can send anyone a C&D about anything.  Just because they can send it does not mean that the C&D has any weight behind it.  Or that there will be any consequences at all. 

At the most, it could result in a nuisance lawsuit by the sender, not to win, but just to harm the defendant financially and bully them.  They don't need to win.

tomd7 in a few articles on guitar websites they have shown excerpts of the notice issued but I haven't found the entire letter posted anywhere.

Joel Hooks yep, that about sums it up.

I always tell my clients that anyone can sue anyone about anything. The same is true for a c/d letter. Whether they have a good claim or not is a completely separate issue.