You do it to yourself, you do

…and that’s what really hurts

Fender Musical Instrument Corporation has lost its recent bid to trademark the Stratocaster, Telecaster and Precision Bass body shapes. According to the Trademark Trial and Appeal Board of the U.S. Patent office,

“The applicant has not established acquired distinctiveness…the evidence overwhelmingly demonstrates that these configurations are so common in the industry that they cannot identify source.”

My initial reaction was, hey, waitaminit. The Stratocaster design is one of the most instantly recognizable electric guitar shapes there is. It’s been around since the fifties. The few dozen other companies Fender named in the trademark claim (including Schecter, ESP, Peavey, Warmoth and Tobias) base their “strat” body designs on the Fender Strat because it’s the original—how can you say they can’t trademark it?

It seems like circular logic: If you design a guitar body well enough that everyone copies it…it’s not “your design,” because…uh…everyone makes guitars like that.

If you read the decision in its entirety, however, the issue becomes thornier.

What it seems to boil down to is that while Fender owned and defended trademarks for the word “Stratocaster” (Microsoft Word even auto-capitalizes it for me), and went after companies like ESP about their too-similar-to-Fender headstock designs, they never said “boo” about the body shape until 2003 (Leo Fender, George Fullerton and Freddie Tavares designed the Stratocaster in 1954). They even talked about imitators in their ad copy in the 1980s:

“You can play an original or you can end up with one of the many copies.”

Nothing can compare to the genius of an original. Because even the best copies are only imitations. The same is true in music. Eric Clapton and the Fender Stratocaster are probably the most imitated guitarist and guitar in the world. But there’s no genius in imitation. Only confirmation of something we’ve known all along. There’s only one Eric Clapton. And only one Fender.

…while not taking any legal action against the imitators, giving tacit approval to the practice of making strat copies. Which gave all the other companies making “strat-style” bodies almost fifty years to establish that the “strat” body shape was a generic electric guitar shape.

Fender also seems to have gone out of their way to disprove their own case in the advertising they’ve put out in recent years. The court decision cites language from Fender print ads that make the claim that the Stratocaster body shape is synonymous with “electric guitar:”

“It’s the de facto standard. Our literature calls it the most popular electric guitar ever made. When people think of an electric guitar, they think of that shape.

“Unfortunately, many guitar and accessory companies have been more concerned with offering you a lookalike. But at Fender, we believe you shouldn’t settle for anything less that true Fender sound. And our Fender products are proof of it. So the point of all this is simple. You can play an original or you can end up with one of the many copies. But don’t say we didn’t warn you.”

…which definitely steers towards classifying the strat shape as a “generic” electric guitar shape. Heck, that last quote even implies that a guitar can be shaped like a Fender Strat, but that’s not what makes it special…therefore the shape is unimportant. Oooops.

As a friend of mine said, I suppose it’s a compliment when your design becomes the definition of an item. Fender has spent a huge amount of time and energy positioning the Stratocaster as “the” electric guitar. For good or ill, they’ve got what they wanted. Be careful what you wish for.

Joe Griffin plays Gibson Les Pauls.


About toxicbag

Toxic Bag Productions, Inc. provides sound effects and music for independent films, animated shorts, theatrical productions, dance performances, podcasts and video games. They work out of their studio on the north side of Chicago.

Posted on April 3, 2009, in Random Ness Monster and tagged , . Bookmark the permalink. 2 Comments.

  1. Actually, Gibson tried and failed to sue PRS over the similarity between the Les Paul and the PRS “single-cut” designs.

    Gibson ate it in the end, court costs and more.

  2. @Kok Vui: Thanks for the info. I certainly didn’t mean to imply that Fender was the only guitar company who ever brought suit against an imitator. IIRC Gibson also sued Electra and Ibanez and a slew of other companies who were making Les Paul copies in the 1970s (I’m also the proud owner of a few Electras, the design of which copy Gibson Les Paul and 335 body shapes).

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