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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.