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Liability And Legal Issues With Copying Guitars

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I have heard that as well, but, what exactly would you say is 25%??

Curtis

EDIT!!!!

Hers how to tell what to make 25% of a guitar

25guitar.jpg

LOL

Curtis

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Although not a guitar, I personally have an invention which is currently being reviewed by a mnfg. company. My invention, of course, was researched to insure no infringements. My patent has been filed (prior to going to mnfg co.). My total cost for all the research and development (including a prototype) was about $9600!

My understanding is that if your idea has a "25%" variation of another, then you can legally design it.

Robert

In fact, it can be as little as 10% variation if it's done in the correct way, but it must be done to show that the small variation greatly improves the product or changes it in such a way that it is a different product. In some cases, the design can be copied exactly if they deem that it is a better product due to materials used (this is based on utility patent, not a design patent).

When you do want to patent a design or invention, you sure need to be confident you'll make money on it, because as you noted, it's sure not cheap!

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We wouldn't have so many new inventions if it weren't for those slight variations\improvements made to existing design. We wouldn't have the humbucker, the solid body, heck, not even the electric guitar. Saying that, I encourage people to be creative and try something new if you have an idea.

By the way, I think there is a loophole to help protect your intellectual property without having to get a patent. Something like mailing documents describing your invention and such, saying you invented it and all that, just like patent papers pretty much, to yourself, your attorney, and an unbiased witness. Then if you ever have to go to court over your idea being copied, you can have the postmaster general confirm that the date stamped on the packages are correct and that they were before the other made use of such technology.

Where's that dude who's taking law classes? Maybe he can explain better or correct me.

Edited by Kyle Cavanaugh

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???

Never heard of that one, although I'll ask one of my friends who has more of a specialty in patent law. A good way to help your trademark/dress case would be to engage in interstate commerce with your product. It can be as simple as sending a purchased item to a friend in another state as long as they give you money for it. That may be where you're getting the idea of mailing a letter to your attorney.

A certified mail receipt is pretty tough to be considered as evidence proving the date of your idea because it doesn't prove the date of the document inside the envelope, only the date the envelope was mailed somewhere. You could have mailed envelopes out to people and stuffed them later, you know?

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We wouldn't have so many new inventions if it weren't for those slight variations\improvements made to existing design.  We wouldn't have the humbucker, the solid body, heck, not even the electric guitar.  Saying that, I encourage people to be creative and try something new if you have an idea.

By the way, I think there is a loophole to help protect your intellectual property without having to get a patent.  Something like mailing documents describing your invention and such, saying you invented it and all that, just like patent papers pretty much, to yourself, your attorney, and an unbiased witness.  Then if you ever have to go to court over your idea being copied, you can have the postmaster general confirm that the date stamped on the packages are correct and that they were before the other made use of such technology.

Where's that dude who's taking law classes?  Maybe he can explain better or correct me.

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Here's an interesting story in Forbes about Fender's plans:

Fender Bender

Generally, public exposure to an idea before a patent application is filed should negate the ability to patent the idea. The Fender Strat has been around over 50 years now, and they've not gone after a single person who manufactured a design based upon the Strat body in that time that I'm aware of. They'll be hard pressed to show due dilligence in protecting their common-law IP rights by letting high profile manufacturers like Kramer, Charvelle/Jackson (now part of Fender), Ibanez, ESP, and others make designs that are only subtlely different than the original Strat design. Even Gibson has made a guitar based on the Strat design before.

While Gibson did get a design patent on the Les Paul in 1993, they also protected their common law IP rights by suing anyone and everyone who made a LP copy over the years. However, since design patents only last 14 years, they'll lose exclusive rights to the design in 2007, when it goes into the public domain.Gibson's trademarks, which can last indefinitely as long as they take pains to pursue them, will remain intact.

Remember the Alamo, and God Bless Texas...

Edited by GodBlessTexas

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Gibson were losing money because people were buying the PRS tremonti SE over the Epiphone LP, nothing to do with the American Made ones. If a Guy wants a Gibson Les Paul because such and such uses one or because he has always wanted one hes not going to consider the PRS. In the whole time i have worked in a guitar shop we have sold 500 Gibson Les Pauls to 1, yes 1 PRS Singlecut. In the same time we went from Selling 100% Epi LP to around 50/50 Epi LP to PRS SE. Now add all that up with all the Kids around the world who are looking for a guitar in that style. A Lot of Cash. I have the Info from someone who works for Gibson BTW. If it really was about the shape then they would have gone for the likes of ESP as other have said, that actually looks like a Les Paul.

:D

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wow... my head hurts after reading through all that...

i think ill get on a dot-point form of that, unless someone already has, i found it quite usefull...

especially about how far your design can be like another, say if i design a body and headstock and sell it i wouldnt want to be viable for prosecution :D

thanks everyone whos posted, ill try get up a simplified/dot-point version up soon, ill go over it with some experts and try post something soon to clear anything up for people... (remembering im in Australia, so it might be a bit biased, i hope should be fairly universal though)

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Something interesting I noticed on G&L's website today, first time I'd been over there in a while:

"Some G&L instrument models are sold under license from Fender Musical Instruments Corporation with respect to design trademarks in the Stratocaster® and Telecaster® body shapes."

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Hi,

Here's a good link toward headstocks:

http://thettablog.blogspot.com/2005/01/rec...ess-rights.html

And as some have posted "trade dress" is the issue. Patents expire after 17 years (before '96 I think) but now 20 years after filing.

I am a guitar builder and have applied for U.S. patent protection. I do my own patent work. Nothin' to it.

Also trademarks do not expire as long as the product remains for sale.

Anyway this looks like a cool forum, glad I found it.

Bill Guess

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So does anyone know the legality of throwing together replacement parts that have been licensed by fender or other companies then selling them on? I imagine since their already licensed that'd be ok right? I ask because I'm not good with wood so can't manufacture my own bodies, but I just did a music electronics course and I'm itching to get torn into making guitars this way.

Edited by Vaiper

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So does anyone know the legality of throwing together replacement parts that have been licensed by fender or other companies then selling them on? I imagine since their already licensed that'd be ok right? I ask because I'm not good with wood so can't manufacture my own bodies, but I just did a music electronics course and I'm itching to get torn into making guitars this way.

You couldnt advertise it as a "fender" nor can you add a decal, regardless of if you used all genuine parts or not (and buying all genuine parts is more expensive then buying the genuine guitar). You CAN advertise it as "a guitar built with the following parts: bla bla"...

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You CAN advertise it as "a guitar built with the following parts: bla bla"...

I think you SHOULD :D

I always get a better impression out of guitars where there is accurate information about the parts it was built with... And especially if the information is accurate, you are on the safer side, or am I wrong?

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for copyrights, there usually needs to be a 10% PROVABLE difference to make sure there won't be any problems... It is the same thing for books and such.

Thing is I kinda think the tremonti should have passed the 10% rule yet they're getting their asses sued.

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The issue of the PRS Singlecut/Tremonti was not Copyright, it was Trademark and specifically trade dress. Gibson had registered the "layout" of the Les Paul as a Trademark and when PRS copied that rough layout, that's how they got into trouble.

Specifically, the four control knobs arranged in the diamond pattern, two humbuckers, and the small single-cutaway body were the main issues. It also didn't help that Gibson managed to introduce further evidence that PRS intended to confuse people and even considered pursuing Les Paul himself and getting him to endorse the PRS guitars instead of Gibson. The whole (ridiculous) idea was that someone could potentially throw down $2k thinking they'd bought a Gibson and get home and suddenly realize they'd bought a PRS copy.

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What if you built a reproduction Fender Strat, called it a replica, used the Fender decals on a Fender licensed neck and body, kept all the tell tale signs that it clearly was not a Fender production guitar (i.e. All Parts, WD Music, Warmoth burn in stamp), played it for a few years, got tired of it, then sold it. Are you still liable?

I've built many vintage reproduction Strats, the Fender Custom Shop knows about this because they've joked around with me on this issue (making fun of me by quoting posts from the Fender Discussion Pages on my work). Not once did Mike Eldred ever pull me aside and tell me to beware. I have been warned to watch my back by Vince Cunetto.

When the SRV #1 tribute Strat came out last year at the NAMM show, Eldred approached me and said, "Now, don't you start making these". That was my only real warning. Either he thinks I'm too small potatoes or I'm going about the process correctly.

Since I've become friends with the Custom Shop staff, I no longer build these replicas out of respect more than anything. They've showed me all of their distressing techniques and I don't want the guys thinking that I used them just to better my replicas. Truth is, I like my distressing techniques better. I've showed them a Custom Shop Strat that I reliced. But I think that was legit since it was a CS production guitar and not something I made.

What's in the back of my mind is the ones that I've sold, will they ever be resold as actual vintage Fenders? Then am I held liable at that point?

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What if you built a reproduction Fender Strat, called it a replica, used the Fender decals on a Fender licensed neck and body, kept all the tell tale signs that it clearly was not a Fender production guitar (i.e. All Parts, WD Music, Warmoth burn in stamp), played it for a few years, got tired of it, then sold it. Are you still liable?

What's in the back of my mind is the ones that I've sold, will they ever be resold as actual vintage Fenders? Then am I held liable at that point?

1. Yes

2. Possibly

If you sell a guitar with the Fender trademarks all over the body or even the body itself that has been trademarked, and it's source of origin IS NOT Fender, you may be liable for infringement. The resale/production licenses on the parts extend only to the original manufacturer of the parts, not an assembler/reseller.

If you sell a guitar and it later gets resold, the person who resold it is liable for infringement, and that person may come back and sue YOU for damages. It would then be up to a judge and jury whether or not you were complicit. Fender could also sue you at any time for infringement, as well.

Here's my advice: Get a license from Fender to manufacture and sell instruments that use their trade dress. Being a small outfit, they'd probably give you a break. G&L, Tom Anderson, and Suhr all are licensed outfits, I believe.

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i was wondering now that i see this, if it would be illegal for me to buy a squier bullet special and transform it into a guitar based on evh's original frankenstrat. if i put no headstock decal on it, changed the neck, and put a decal inside the trem cavity (which i would rout) saying that it was originally a squier i messed with, would i be at risk of being sued by charvel (with their new evh models) or squier if i sold it at some point?

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2 Situations:

You could only be liable to the original licensor of the trademark (Eddie Van Halen) IF you either sold the guitar OR played it publicly.

If FMIC/Charvel is the exclusive licensee of the EVH stripe-style artwork, they may also have grounds to sue you for violating their exclusive license to manufacture and distribute that artwork, or for performing with that guitar.

Squier is part of FMIC, and they have no grounds to sue you for actually modifying the instrument. FMIC can only sue you for performing with the instrument or selling it.

To be quite honest, though, they're not going to come after you for painting your Squier and playing it with your garage band or any band, for that matter. Waste of time and resources. If you put it up on eBay, though, there is a possibility it could be pulled.

Edited by crafty

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???

Never heard of that one, although I'll ask one of my friends who has more of a specialty in patent law. A good way to help your trademark/dress case would be to engage in interstate commerce with your product. It can be as simple as sending a purchased item to a friend in another state as long as they give you money for it. That may be where you're getting the idea of mailing a letter to your attorney.

A certified mail receipt is pretty tough to be considered as evidence proving the date of your idea because it doesn't prove the date of the document inside the envelope, only the date the envelope was mailed somewhere. You could have mailed envelopes out to people and stuffed them later, you know?

To clear this up, 'cos this is a common misconception.

You can NOT use a certified mail receipt as proof of the date of creation in the US. However, and this is where it gets fun, the "poor man's copyright" is a recognized part of English common law. So, if you're in the US and you try this is highly doubtful that it'll work. But if you're one of our friends from across the pond, you've got better chances. (I actually just found this out myself, I knew it wasn't valid in the US, but not that it WAS valid somewhere.)

Edited by GEdwardJones

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As I predicted...

http://www.prsguitars.com/news/stories/091205_victory.html

My favorite part: The decision also immediately vacates the injunction prohibiting the sale and production of PRS’s award winning Singlecut® Guitar. Paul Reed Smith Guitars announced today that it will immediately resume production of its Singlecut® guitars.

Appellate Court Awards Victory to Paul Reed Smith Guitars (PRS) Over Gibson

In a long-pending trademark dispute between PRS Guitars and Gibson Guitars Corp., the United States Court of Appeals for the Sixth Circuit today reversed a lower court decision and ordered the dismissal of Gibson's suit against PRS. The decision also immediately vacates the injunction prohibiting the sale and production of PRS’s award winning Singlecut® Guitar. Paul Reed Smith Guitars announced today that it will immediately resume production of its Singlecut® guitars.

Paul Smith, the founder of PRS, stated “We are delighted that the appellate court affirmed what we and the industry have long known: the PRS Singlecuts® are musical instruments of the highest quality that would never be confused with a competitor’s product.”

In the litigation, Gibson alleged that concert goers in a smoky concert hall might not be able to differentiate a PRS Singlecut® from a Gibson Les Paul. The appellate court rejected that trademark theory out-of-hand, emphasizing Gibson’s concession in court arguments that “only an idiot” would confuse the two products at the point of sale.

William Coston, PRS lawyer, observed that the decision is a vindication of PRS’ meritorious defense of unfounded allegations: “We agree with the Court and Gibson’s own counsel that 'only an idiot' would be confused". Sadly, the injunction lasted too long and the court process was too long and costly, depriving consumers of the right to choose between the PRS Singlecut® and the Gibson Les Paul. We hope that Gibson will now compete in the marketplace and not use litigation to obtain unfair advantage.

Funny that it only took getting it into federal court to get it vacated. I wonder if the judge in the previous case got a campaign donation from Gibson...

Remember the Alamo, and God Bless Texas...

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GodBlessTexas, you're not even on the map.

The case was originally tried in the U.S. District Court in Nashville. The next step, where PRS won, was in the Sixth Circuit U.S. Court of Appeals. The judge in the original case was not elected by anyone, nor did they have any kind of "campaign" to contribute to.

The fact is that Gibson had some very good arguments the first time around that PRS really didn't take seriously enough. Then they wound up getting bit in the ass and losing SC sales for a year while they hired a decent T&UC lawyer to build a good appeal.

I'm not trying to defend Gibson's actions here, which I find to be reprehensible and anti-competitive at the lowest level, but PRS didn't take the threat seriously from the beginning and paid dearly for it. I'm glad they won, and we'll see if Henry decides to petition for cert, but I think it was a big wake up call for PRS to tighten up their own business practices and confidences.

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