Shapes of Things
Trademarks vs. Patents
Guitar copies and the legal wrangling around
them is one of those subjects that guitar aficionados talk about from time to time with
more fascination than information. There is no
clear body of law defining how far one may go
in copying a design without exposing oneself
to a lawsuit. There’s no telling when or how
you’d get sued, because the originators of the
iconic guitar designs have historically been
inconsistent—even arbitrary—about when and
how aggressively they’ve challenged clones.
At a time when the music industry is obsessed
with copyrights and intellectual property, the
guitar industry operates in an environment
somewhat like the permissive shadow world
of hip-hop mix tapes. For most of the past 50
years, the guitar market has largely been a
free-for-all where guitar manufacturers—from
individual luthiers to assembly-line operations—have imitated classic guitars almost at
will. In some cases, builders improved on the
iconic designs and charged premium prices.
In others, companies of dubious repute mass-manufactured mediocre facsimiles and sold
them to players who covet the real thing but
can’t afford it. Of course Fender and Gibson,
the two guitar makers with the most at stake,
have introduced their own entry-level versions
of their key models, but one could ask reasonably why should they have to compete with
other makers’ knockoffs of their own designs?
To get a handle on this issue, we’ll need to go
to law school for one paragraph so we can learn
the difference between patents and trademarks.
(In case you’re wondering where “copyright”
fits into the equation, it applies only to composed or authored works and, therefore, has
no bearing on guitars or other manufactured
items.) Patents cover inventions—anything that
is functional, as opposed to aesthetic. One has
to apply for a patent through a rigorous process
in which you prove originality and describe your
design in detail. If you win a patent, you have
exclusive rights to make or license the invention
until the patent expires (these days, it lasts 20
years). Trademarks, on the other hand, cover
brands and nonfunctional design features (like
Nike’s swoosh or Fender’s logo and signature
headstock shape). Trademarks never expire.
However, trademark owners must consistently
protect and defend their trademarks. So for
example, Xerox couldn’t be lazy for 20 years
and let other companies claim they make a better “Xerox” machine and then suddenly swoop
in after the term has become generic and sue
folks for using it.
Left: A 1959 Les Paul Standard owned by John Clardy. Photo by Billy Mitchell taken from
Electric Guitars & Basses: A Photographic History by George Gruhn and Walter Carter, ©
Gruhn Guitars, used by permission.
Right: A PRS SC 245. Photo courtesy of PRS Guitars.
Clash of the Titans, Pt. 1
The earliest industry trademark dispute any-
one seems aware of actually pitted Fender
against Gibson in the mid 1960s. Gibson had
engaged automobile designer Roy Dietrich to
come up with the Firebird, a zig-zaggy electric
guitar that some have said evoked the era’s
oversized automobile tailfins. Fender decided
that it too closely resembled its Jazzmaster
and either sued or threatened to sue. By
today’s standards, Gibson would have had a
pretty easy time defending itself—the profiles
of the two instruments are quite different.
Nonetheless, Gibson voluntarily made dra-
matic changes to the Firebird design and the
dispute became moot.
Fast-forward to the 1970s and the rise of the
Japanese manufacturing juggernaut. Besides
small, fuel-efficient cars, the Japanese were
making ever-better musical instruments. One
such company was Hoshino Gakki, maker
