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Liability And Legal Issues With Copying Guitars

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Not sure exactly where to put this, but I thought I'd make a post regarding this after reading the thread with the Nuno N4 replica that was being sold on ebay.

Now, please first understand, this is nothing against that auction or how it was listed, this is simply put, a post regarding design theft etc.

I have just completed filing of patents and trademarks for the LGM Leviathan models. This is a brutally expensive process so when somebody goes through the hassles, time and expense of doing it, they expect their design protected.

Under law, once a design is Patented, be it the Leviathan, a Strat, a Les Paul or otherwise, copying that design for more than personal use is completely illegal.

The minute you post pictures you can be held liable for design theft if it can be concluded that you are using those pictures for personal gain, (ie: promotion)

This is not a concern with posting project pictures really because no company is going to spend the money involved in a lawsuit on trying to nail somebody who is attempting to copy a guitar, the exception might be PRS, they seem to try to sue everyone. Well, maybe the Van Halen camp as well.

If you try selling that guitar, you are immediately liable for design theft. You are stealing a patented design plain and simple and looking to profit from it. This includes but is not limited to, trading items for the guitar, even if you sell it for only a penny, it is considered profit reaped from another persons/companies design.

In short, everyone was complaining about that particular auction being fraudulant due to a description that was misleading, making it sound like it was an original guitar, thats true, that's what I thought when I read it as well. However, being a hobby builder for yourself is fine, when you start selling the guitars, be aware of the legal issues you may face. Typically if you're just a small builder there will be no problems, as you become higher profile people start to notice.

This is one of the reasons I designed the Leviathan. Everyone knows I started out by customizing Ibanez's to look like Custom Jem's. I don't want to do that forever and end up in trouble with Ibanez, I have a "handshake" agreement with them (which really doesn't protect me from anything, just an act of good faith) that says I can make custom Ibanez guitars provided I do NOT put "Ibanez" on a non Ibanez neck, never put "JEM" on a guitar that was not originally a JEM, and do not try to ever sell guitars that weren't original Ibanez parts as Ibanez guitars.

That's all fine and good, but now more people are wanting 8 strings and I am not going to build an 8 string that looks like an Ibanez when Ibanez doesn't even have one, hence the Leviathan.

Anyway, this is not in any way meant to discourage anyone. Just to make you aware, if you want to sell your guitars you build on ebay, and they are replica's, remember, the big companies are watching Ebay looking for fraud, that is where you'll start to get in trouble.

Be careful, be smart, and have fun!

Jeremy

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Jeremy, thanks for the great post. I was in the process of writing a thread on this myself. I was curious as to the costs asssosciated with copywriting, and any steps a small time builder can do prior to building that will help protect your designs. I assume not showing anyone is one key step. How close do they have to be to be considered ripoffs? Does it have to be blatant? Or just a resemblance and youre screwed? Thanks for the thread

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Does anyone know what Fender is doing or what their plans are for the Strat bodies and headstocks that are so widely copied around the world? Are they ever going to try to put a stop to it or are they screwed since they have let it go on for so long already? I don't personally care about Fender but I have seen soooo many variations of the Strat it just makes me curious.

I'd also like to know how it is determined when it is a copy/theft and when it is just a similar looking instrument. Is it just up to the judge to determine this or are there actual guidelines that spell this out?

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Great post, LGM.

Dave- with regard to Fender and their designs....

The last I heard, FMIC was trying (very hard) to get design patents and trademarks on the Strat, Tele, P-Bass and Jazz Bass body shapes. Considering the Strat is 51 years old, and the Tele even older, I *highly* doubt their requests will be granted.

The Strat/Tele/J- & P-Bass names and headstock shapes are already covered under US trademarks.

If FMIC does plan on going ahead with the design patent/trademark thing, there's a HUGE consortium of builders, suppliers, and other companies that are prepared to fight it tooth and nail.

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It is interesting how Fender was always more concerned with trademarking headstocks more than body shapes. Seriously, at least Gibson was smart enough to go after Ibanez and the other imports early on to protect the Les Paul design. I wish they hadn't gone after PRS over the Singlecut, but I do understand why they had to do so.

That was a great post, Jeremy. I think a lot of people go to Ed Roman's site and see his "conversions" that are flat-out copies and think they can get away with slapping a JEM decal on a mutilated, left-handed RG. Such actions will only lead to the big guns tightening their grip on their trademarks and going after reputable builders who aren't doing anything wrong.

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I wish they hadn't gone after PRS over the Singlecut, but I do understand why they had to do so.

I dont agree. I dont think (after playing a PRS singlecut) that it's that much like a paul. The lower horn is way different and the feel is much different. (the PRS being better of course :D )

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Don't even try to expect a solid answer in a few sentences on copyright infringement. There are so many loopholes, laws, and new changing court decisions that turn up everyday, after the internet got big all these things multiplied exponentially. Unless you put a Fender logo on a guitar you built and try to sell it as a Fender they probably won't care. If you plan on trying to get a patent, trademark or sue someone for infringement, make sure you have money and a good patent attorney, don't even try to do it alone unless you are a patent attorney. Besides there are so many rip off companies in existence that try to duplicate the PRS look and they change a minor little thing and they can get away with it, I say be original and different and avoid all this crap all together. Also after enough years pass on some things are considered "generic" and become impossible to sue on infringement and anyone can use. Almost like asking for a Kleenex when you need to blow your nose, that is a product name, it is a tissue but Kleenex has made it into our brains as the generic name for a tissue so if someone said Kleenex in a movie without their consent there is really nothing they could do about it. That's basic but kinda explains how many companies can get away with "copies" of other guitars. If you really want to know as much as possible go enroll in college for a patent law degree, there is just too much info.

Edited by Ragasguitars

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Jeremy, thanks for the great post. I was in the process of writing a thread on this myself. I was curious as to the costs asssosciated with copywriting, and any steps a small time builder can do prior to building that will help protect your designs. I assume not showing anyone is one key step. How close do they have to be to be considered ripoffs? Does it have to be blatant? Or just a resemblance and youre screwed? Thanks for the thread

First of all, copyright is a word thrown around carelessly. You cannot "copyright" a design or name. Trademarks are used to protect a name. Copyright refers mostly to printed material (be it in text, drawing, or recorded) This is why paintings, logo's, and lyrics can be copywritten. However, I cannot copyright the name "Leviathan" as it is a standard english word. If I draw a specific logo for the word Leviathan that can be copywritten. As a trademark though, it is protected in use on my product, in other words, you cannot build a guitar and call it a Leviathan, same like you can't call it a Stratocaster.

To protect a body shape, you must file a Patent, 2 patents available to guitars are a Utility patent, and a design patent. The Utility patent will only apply if you have developed a guitar with a unique feature that is new to the world of guitars, a different body shape will not apply. Something like the Novak "fanned fret" system has a utility patent as it was a new development that supposedly "improves" the use of a guitar (jury is still out on that one LOL)

Adding a deeper cutaway, or longer horns like I did with the Leviathan is not considered for a Utility patent as the overall design of the guitar is the same. That being the case I applied for an "industrial design patent".

I was fortunate in that Darren (my webmaster) had already done some line drawings of the Leviathan for the website. One of the large costs associated with the design patent is the necessity for accurate drawings depicting the design of the guitar. Most times the patent attorney will require you to have their own draftsman do these drawings. Having Darren be able to do them saved me over $1000. (although his guitar is costing me more and more now LOL)

Once the drawings are completed, they must be reviewed by the patent office and an in depth search is done to be sure there is no other design previously filed that resembles your guitar.

In total, the design patent costs around $4000 if you cannot supply your own drawings. You are paying for a search, filing, review, and all the other legal BS that comes along with it.

In the end, your design is ONLY protected in the country of patent, if you file ONLY a US patent, it means that nobody in the US can copy your design, and nobody in the world can sell your design to the US, however, it means that somebody in say China, or even Canada can copy it and sell it everywhere else except the US. In order to protect it in all countries you would have to file a patent in every country. You consider all the countries that are a threat and it's a HUGE expense. Thankfully the primary market is in north America so concentrating on a US patent gives you a reasonable amount of safety.

I won't mention all countries I filed in as I don't want to be posting how ridiculous it is cost wise, but there is nothing cheap about it.

I took a risk when I released the Leviathan, I released it before patenting the design. You have one year from release to patent file date before you can no longer file a patent. I wanted to see what the reaction to the guitar would be before investing in a patent, if the design sucked I wouldn't want to pay for the patent. However, in doing this, it opens the door for anyone to steal the design, if they patent it before I do, I'm screwed, my gamble in this case was a good one, my patent filed first so I'm protected.

I know there are sites and books you can buy on patenting things yourself, my best advice, DON'T. Although expensive a GOOD patent attorney is worth his weight in gold. It is so easy for a patent to be rejected if even one I isn't dotted or one T not crossed.

Even after filling, there is a risk that the patent will be rejected, you won't know this for at least a year, maybe longer, but as long as the patent is pending you are protected.

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To be honest I really think copyrights and trademarks were something of the 20th century. Something we tell our kids about. :D

I've spend way too much time in China and India to know. And they don't copy it.......they just "reverse engineer" it. B)

Personally I'm not so worried about a copied guitar shape, or Ralf Lauren Polo shirt for that matter........I do get worried when the "reverse engineer" Boeing 747 Engine attachment bolds.

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The last I heard, FMIC was trying (very hard) to get design patents and trademarks on the Strat, Tele, P-Bass and Jazz Bass body shapes.

Fender had patents on those designs. I saw the documents on the patent office site when I was looking for the Gibson moderne.

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LGM, thank you so much for your second post on this issue. It saved me going through a whole bunch of papers and crap. Patent searches are very unreliable and undependable and add little validity to a general-class patent-issue lawsuit. The cost of full patents has gotten to the point that it takes a REALLY big enterprise to ever reap any benefit from one. I have had to overlook several "imfringements" on my patents just because of the cost involved in pursueing them. Lawyers, guns and alchohol.

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Another thing to keep in mind is that trademarks don't automatically apply to the whole world. For example Gibson can't do much about exact Les Paul copies sold in Japan for example. They can't have the Gibson name on the headstock, but the design is exact from headstock to body shape. If these manufacturers want to sell the guitar in the States, they must change the headstock and body shape as far as I know.

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ON th eGibson issue, he may not be able to do much in overseas sales, but look at the extreme burocracy that happened when they made PRS pull all the Singlecuts out of the market. And the PRS don't even looks like a LP like the Agile does. But why? Because PRS is a much better instrument than the Agile and is a more strong adversary!

There are so many differences between the 2 that it's not funny. Why don't Gibson goes against ESP for the eclipse!!! There is a lot of liitle strings that are pulled in this copyright stuff that you need a doctors to understand it well.

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Jeremy,

How long is your patent good for?  Is there and expiration date?

Best Regards,

Mike.

Someone can correct me on this, but it's a finite period 15 - 25 years. The original purpose of patents was to make it economically viable to be an inventor. That is, if you invented something cool, you were given exclusive use of that thing for a period of time in order to recoup the money you spent actually inventing it.

Patents eventually lapse, as do trademarks and things do eventually go into the "public domain" where anyone can do anything they want with them (useless knowledge, the original Mickey Mouse shorts were slated to go into PD last year, an event stopped by massive lobbying by companies such as Disney to extend the copyright period).

Exclusivity rights must also be protected. This is why Fender's bid to patent the strat/tele/etc. shapes may be an excersize in futility. Unlike Gibson Fender has never really done much to actually discourage other people from making exact replicas of their bodies for the past 50 years. The argument would be that Fender didn't care enough to stop people from copying their designs for the past 50 years, screaming "but they're ours!" now doesn't cut it.

And that's about as short as I can parse down my business law course when I'm this tired.

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ON th eGibson issue, he may not be able to do much in overseas sales, but look at the extreme burocracy that happened when they made PRS pull all the Singlecuts out of the market.  And the PRS don't even looks like a LP like the Agile does. But why? Because PRS is a much better instrument than the Agile and is a more strong adversary!

There are so many differences between the 2 that it's not funny.  Why don't Gibson goes against ESP for the eclipse!!! There is a lot of liitle strings that are pulled in this copyright stuff that you need a doctors to understand it well.

having seen an image of a prs singlecut silhouette over a les paul silhouette, yes they do (did) look that much alike. the outlines are close enough to identical that the difference is negligable.

and gibson didn't sue agile because kurt from rondo music changed the design before gibson felt the need to resort to legal action.

as for going after the eclipse: the lower horn is clearly different than a gibson's. gibson could go after prs because the shape was EXACTLY the same.

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having seen an image of a prs singlecut silhouette over a les paul silhouette, yes they do (did) look that much alike.  the outlines are close enough to identical that the difference is negligable.

With all due respect that is utter, utter rubbish. The upper and lower bouts are different dimensions. The PRS has an egg shaped arse, whilst the Gibson's is round. The PRS has a longer body. Identical my arse. The Eclipse is far closer in shape, with the only significant difference being the cutaway - likewise the Agile.

I'm not keen to start an arguement on the ethics of the situation, but I'm not going to let people make statements which are emphatically false, and the above definately falls into the category!

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ON th eGibson issue, he may not be able to do much in overseas sales, but look at the extreme burocracy that happened when they made PRS pull all the Singlecuts out of the market.  And the PRS don't even looks like a LP like the Agile does. But why? Because PRS is a much better instrument than the Agile and is a more strong adversary!

That doesn't even make sense. PRS is, however, higher profile. A win against PRS is a much better PR move than a win against Rondo Music. The quality of the instrument had nothing to do with it.

  Why don't Gibson goes against ESP for the eclipse!!! There is a lot of liitle strings that are pulled in this copyright stuff that you need a doctors to understand it well.

Didn't the Eclipse originally look exactly like the Les Paul? Didn't the EX originally look exactly like the Explorer and the V like, well, the V? I've always suspected that Gibson started sending out cease & desist orders right around the time these designs changed. Is anyone in the know around?

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There are MANY more issues regarding the PRS vs Gibson case, that the body shape was but a minor minor point. do a search, the entire court transcripts are out there.

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With all due respect that is utter, utter rubbish.  The upper and lower bouts are different dimensions.  The PRS has an egg shaped arse, whilst the Gibson's is round.  The PRS has a longer body.  Identical my arse.  The Eclipse is far closer in shape, with the only significant difference being the cutaway - likewise the Agile. 

well unfortunately i don't have the ability to duplicate the silhouettes that i described (paint is the only imaging program i have), but just about everything matched up perfectly.

and evidently having the cutaway different is enough to satisfy gibson.

Edited by ThePlague

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i have seen the sillhouettes matched up on the net as well.they were nothing alike...but they are similar enough for a side by side comparison.

but trademark infringement is between the companies and the court.they made their decision

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