A 1953 Tele owned by Toby Ruckert. Photo by Walter Carter taken from Electric Guitars &
Basses: A Photographic History by George Gruhn and Walter Carter, © Gruhn Guitars,
used by permission.
Guitar historian and journalist Tom Wheeler
agrees. “There are plenty of guitars out there
made by reputable [builders] that one could look
at and say, ‘This is an interpretation of the Strat
idea.’ I think that’s fine. I admire those guys. It’s
the guitar that is a copy down to the last screw
that I feel it’s a shame that Fender gets nothing.”
Wheeler shares other luthiers’ puzzlement that
these infrequent-but-intense battles have been
fought over something as generic as the mere
body shape—without reference to all the key
design elements that make up the “face” of a
Strat or Tele. “I hope that, at some point in the
future, we can get beyond the issue of the two-dimensional
body outline so that all manufacturers
and every creative person can be a little more
protected in their creativity and their work.”
The Irresistible Piñata
It’s been about a year since the Fender trademarks
were denied, and with no conspicuous
lawsuits out there, the few guitar geeks who
watch this issue closely are saying it’s probably
now pretty much over. If you can’t win a
claim on a trademarked shape you do have
(like Gibson), and you can’t gain a new trademark
on a tried-and-true body style (Fender),
then where else is there to go? All we’re left
with is a fascinating question for the Monday
morning quarterback. Did Gibson and Fender
blow a historic opportunity and forego millions
of dollars of revenue by not protecting their
signature body shapes through trademark law
earlier and more often?
James Boyle, a professor at Duke University
who specializes in intellectual property issues,
says there is no clear answer, because one has
to remember that all those copies over the
years have in a sense served as free advertising
for the real thing. Boyle, reached by email,
examined the issue in proper professorial
fashion—in the form of some good questions:
“Is part of the reason that Les Pauls,
Strats, and Telecasters are iconic because they
were the subject of so much slavish copying?
Did the copying end up establishing them
as the undoubted aristocracy of the guitarists’
world—the guitar that the junior rocker
dreams of moving up to once he has graduated
from his first cheap knockoff? Or did [other
manufacturers’ copies] lose them a market that
they could have legitimately controlled with
trademark, and thus represent a substantial
number of lost sales or licensing payments?
You and I might have intuitions about which
course would have been best, but it is hard to
claim a watertight economic case.”
No doubt the chief executives of those companies
wonder about this themselves—perhaps
more often than they let on. And, considering
the sporadic history of this fight—as well
as the stakes involved in such a competitive
economy—it seems probable they or some
future executives will eventually take another
swing at the piñata.