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Bruce Springsteen in concert
His “David v. Goliath” fight ended in victory when the United States Trademark Trial and Appeal Board agreed with 17 large and small guitar manufacturers — represented by Bienstock — that the designs have become generic.
The precedent-setting decision protected the livelihoods of countless luthiers.
“If Fender would have been granted the trademarks, thousands of guitar makers would have been out of work,” Bienstock said.
Fender argued that the two-dimensional angles and lines of three of its axes — the Stratocaster, Telecaster and Precision Bass electric bass — were unique to its brand.
But Bienstock, an adjunct professor at NYU and a frequent contributor to national music media, said that was like trademarking round watches. Fender wasn’t entitled to such a competitive edge, especially since it waited until 2003 to seek the trademark, the four-stringed lawyer argued.
Bienstock & Michael, P.C. is a full-service intellectual property and entertainment law firm with offices in New Jersey and New York.
Before founding the firm, Bienstock was editor-in-chief and publisher of International Musician & Recording World. He also was general counsel to Hoshino, U.S.A., which makes Ibanez Guitars.
Now-defunct BAM magazine voted him one of the top 100 “Most Influential People In The Music Business” in 1991.
Bruce Springsteen, Eric Clapton and others have made their names slinging sleek-looking solid-body guitars made by Fender. Despite the maker’s grand history, Fender failed to promote or police the outlines as trademarks, the Appeal Board said.
“While it may be that the more knowledgeable consumers are familiar with the history and origin of these shapes …,” the 75-page decision says, “this record does not support a finding that consumers with varying degrees of knowledge would or could identify the source of a particular guitar based solely on the outline of these body configurations.”
The outline of the Strat, in particular, was common enough to be depicted as “a generic electric guitar in a dictionary,” the 75-page decision says (Click here to read it).
As one music aficionado quipped on musicradar.com: “Indeed, the courts are rarely favorable to companies who attempt to close the barn door long after the horse has run off. In this case, the horse has been on a world tour and retired to China.”
Indeed, more than the manufacturer itself, Strats and Telecasters have become synonymous with their owners.
Clapton five years ago donated his sleek “Blackie” Strat for for a charity auction — and raised $1 million. Springsteen’s photos for the “Born to Run” album are as known for his Telecaster as for his floppy cap and leather jacket.
Few people may know that the Strat wasn’t even designed for rock and roll.
Musical visionary Clarence Leonidas “Leo” Fender invented it in the early 1950s for one of his favorite players: Eldon Shamblin of the Texas Playboys. The band played behind Bob Wills, a visionary of his own, whose style of western swing is still reprised today. Fender had invented the Telecaster (originally called “the Broadcaster”) several years earlier.
Before long, Gibson got into the solid-body game, bringing on Les Paul to produce a similar product.
Other manufacturers followed suit over the last half-century.
“Retrospective copyright rarely works,” another poster to musicradar wrote. “If they were that worried about their design being copied, they should have gone through the whole legal bit before they even released the guitar.”
“This is an important victory, not only for our clients, but for the guitar industry as a whole,” Bienstock said. “[It] affirms what our clients, and everyone else in the industry, have known all along: These body shapes are generic and belong to everyone.”
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