Is Fender Threatening Anyone Who Makes Strat-Shaped Guitars?

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:03 Jenessa: This judge wrote pages about why Stratocaster does get copyright under German copyright law.

0:00:17 Jenessa: Most people probably did not go through the headache I went through and are telling you what they think under American law, what this German document probably said.

0:00:33 Thomas: Hello and welcome to Opening Arguments. This is episode 1268. I'm Thomas Smith. That over there is Jenessa. How are you doing?

0:00:39 Jenessa: I'm doing pretty good. Pretty busy over here.

0:00:41 Thomas: Oh wait, we should do it different. You're a real -life attorney and I'm real-life guitar player Thomas Smith Squiggle!

0:00:49 Jenessa: Yes. Little peek behind the curtains. Normally I give Thomas little to no information about what we're going to cover, but this time we're covering something you have quite a bit of knowledge about.

0:01:03 Thomas: You might think that's because I'm lazy But it's really because the listeners have no information going into it and we want to make sure everyone keeps up And I'm Lazy. It's those two things combined mind. Just want to make sure we're all straight on that. Both things. But yeah, no, you mentioned to me ahead of time, we're going to be talking about this Fender Stratocaster thing. Allegedly our company is being told to destroy all their instruments that look anything like the Stratocaster. That's kind of the viral claim being made. And there's a lot to talk about, about that, right?

0:01:37 Jenessa: For sure. There's a lot of claims being made and possibly at least some of it overblown.

0:01:44 Thomas: A lot of riffs being played, a lot of skiddle -de -o -dee -o being skid -le -dey -o little nailed

0:01:46 Jenessa: Yup. Yeah. I think the biggest thing being a lot of extremely confident statements being made about something that is very up in the air yeah yeah it's the internet Oh, uh, New Yorkers your primary election is going to be soon early voting is june 13 to 21st and general election is on june 23rd

0:01:57 Thomas: As usual. Yeah. Well, I'm excited to dig into it. Oh yeah. I feel like you're constantly reminding us of elections.

0:02:16 Jenessa: Don't forget about it Yeah, California your primary will be over by the time this airs so I hope you have done

0:02:26 Thomas: I, uh, I can't be trusted to vote. So I think Lydia took care of that for me, you know, cause really what would a husband do other than just being canceling their wife's vote or like doubling it? You know, like what, why even, I don't think men should be allowed to vote it would just cancel out their wife. Vote. That's what I'm saying.

0:02:41 Jenessa: Well I wish this was a joke but it's like literally the arguments people are making for why women shouldn't be able to vote yeah

0:02:45 Thomas: It really was. I mean, well, it was the historical argument too. I saw it was like an old news thing, you know, op -ed or something that was like, I thought it was so funny. I always remember it because it was, like, women shouldn't be allowed, there's no point in having women vote because they'll just, like cancel out their husband's vote or they'll be redundant with it. It's like, yeah, those are the two possible ways that other human beings could vote in an election that has like one choice or whatever.

0:03:09 Jenessa: Those are the options yeah yeah

0:03:15 Thomas: I just thought it was such a funny, like telling look into how much they didn't consider women to count as people. It's very, very, uh, quaint or not. I don't know. That might be what we're getting back to.

0:03:26 Jenessa: Oh yeah no no there's like modern preachers saying this tears families apart because women cancel their husband's votes that like you used to vote as a family now you vote as individuals it's like no the husband voted and the wife had nothing to be able to say is what actually happened

0:03:46 Thomas: So silly. Oh, good times. Well, that's a good reminder of election news. There's going to be some interesting elections coming up, for sure. We're going to keep an eye on all that, of course. But back to skin. I'm excited to talk guitar stuff and, you know, trademarks and all that good stuff. By the way, if you're a Gavel Gavel fan, make sure to check that out because we did bonus readings, sort of impromptu readings from the hearing in which a judge absolutely roasted the assholes responsible for the Broadview Six. It was great. Lydia got to play a stern, sexy judge. I'm adding that, but it's just a stern, sexy judge that really, and I got to play the guy that she was, uh, she was lecturing, you know, so really, really, it was some, some stuff that probably shouldn't have been on air. You know, it's just like, it might've been more for me than anybody else, but if you'd like to also hear it, uh that was a gavel gavel bonus that we did recently. So lots of reasons to support the shows. Thanks so much to those who do. And most of all, if you can't do that, no big deal, but please share the show, especially if it's, uh something something that, you know, is up your alley. You think a friend might be interested in. All right, we'll take a break and then we'll, uh, I'm not going to stop doing that.

0:03:55 Jenessa: Delightful yeah Yeah.

0:05:05 Ad: [Ad break 1 — ad music]

0:05:05 Thomas: All right. Jenessa let's riff. Let's, uh. Let' talk about what's going on with the Stratocaster.

0:05:11 Jenessa: This one's going to take us through a lot of different areas of intellectual property law. To start off here, we're going to mostly go through U .S. law unless otherwise specified. We are eventually going to have to touch German, European Union, and international law very very briefly. But otherwise, we're talking about the U .S. here. There's four types of intellectual property, patents, copyright, trademarks, and trade secrets. We're not talking trade secrets today because the guitar is out in the open.

0:05:44 Thomas: Hmm. Yeah. Yeah, it'd be kind of funny if it was a secret. Yeah I'm gonna play this solo and it's gonna rule, but you can't see the guitar. It's a secret the way I make it. You can't see.

0:05:53 Jenessa: Some sort of like art piece that you'd see at the Guggenheim. No, this is all out in The Open. Patents, copyrights, and trademarks are all going to come up to really understand what's going on. The recent development is a copyright lawsuit in Germany that has led to a bunch of cease and desist letters, one of which did go to a U .S. company, at least one that we know of. It's going to feel like Like, shouldn't we focus on copyright? But the whole story is going to start with a bunch of patents and design patents and copyrights and trademarks that are happening in the U .S. a lot earlier.

0:06:44 Thomas: I'm sorry. Is Fender a German company?

0:06:47 Jenessa: No.

0:06:47 Thomas: Oh, okay. I was like, I feel like I would have known that but I'm not like I uh I'm weird in that I love playing guitar but I've never been and for everything I'm in I've ever been the like gearhead guy that's like oh have you gotten the 78 000 s series whatever like I don't I just want to play a guitar so I and I have a terrible memory so I will sound like I do not know what I'm talking about but I do know uh quite a bit about playing guitar and I but I am a telecaster guy I have never liked the stratocaster build I just think it looks a little ugly. I love the Telecaster build. So I have a Telecaster. That's my guitar. So, I'm glad that, you know, at least nothing's touching that.

0:07:23 Jenessa: This is going to be perfect, then, because I know about the Fender Stratocaster because of Wayne's World. That's what I know. I know it's an electric guitar.

0:07:32 Thomas: Wait a minute. I'm just realizing I haven't seen that scene in Wayne's World since I was a kid and I didn't know anything about guitars. And now I'm realizing I want to see if what she says makes sense.

0:07:43 Jenessa: I have the clip saved. Would you like it? Yeah?

0:07:45 Thomas: Oh, I was just going to look for it. Yes, please. I was just going to say stop and let's Google, but you're way ahead of us. Oh I love it. Okay, here we go.

0:07:55 Thomas: Classic. Oh yes, this is a white strat.

0:07:57 Clip: There it is excalibur wow 64 fender stratocast and classic white with triple single coil pickups and a whammy bar free cbs fender corporate buyout I'd raise the bridge file down the nut and take the buzz out the low e god I love this woman

0:08:16 Thomas: That all made sense more or less. Yeah.

0:08:19 Jenessa: I wouldn't know.

0:08:21 Thomas: I mean, I wouldn't do anything to it if it was a 64, you know, like if it was kind of a collectible, but okay. So we got a 64 strat. I remembered her rattling off a bunch of stuff, but I haven't seen this since I was like 10. So yeah, it all kind of made sense. It's single coil pickups. There's three of them, you know, a whammy bar. That's kind of silly because actually, yeah, that is kind of of silly the whammy bar is a 10 cent piece of metal you can screw into the bottom there that's like you could buy a hundred of them and put any like that's kind of silly now I think about it sorry my childhood is coming back to me as I'm realizing like I know you know it's one of those movies where I know every frame but I haven't thought about it since I was 10 and

0:08:27 Jenessa: Today, right? Okay. Okay. Yeah. Yeah, I

0:09:00 Thomas: I'm like oh it's all coming back I love wayne's world anyway okay I

0:09:03 Jenessa: Was having one of those false memories coming in where I hunted for, I swore there was another clip of him talking about it with Garth. But it's just at the end of the whole Bohemian Rhapsody thing, right near the end, they pull up to the store and he looks at

0:09:12 Thomas: Think they're Yeah that's what I'm thinking enough. Yeah. She will be mine.

0:09:24 Jenessa: It and he's like, it's not worth it, man. Live in the now. And he's like, It will be mine. But he doesn't say what it is and he doesn't say anything about it.

0:09:28 Thomas: She will be my, yeah. You'll never afford it.

0:09:35 Thomas: Yeah. So that's funny. I thought that was going to be what this was, but you're right. Yeah, that's the one he just says she will be mine. Oh, yes, she will.

0:09:43 Jenessa: Yeah, but he never says the Fender Stratocaster. It's not the relevant clip for us. It's all visual. I could have swore there was going to be something about it. Wasted a ton of of time trying to find a memory in my brain.

0:09:45 Thomas: Yeah yeah. Oh that's, that was funny. Love it.

0:09:54 Thomas: I have done that exact thing before for sure where I'm like, oh, I remember this quote that would be perfect for the show and it turns out it's an amalgamation of things in my brain and it's like ah it would have been great if it if you imagine if it did happen like that it would've been

0:10:06 Jenessa: Would have been great if it was real life. Yeah, that's pretty much all I know. It's an electric guitar.

0:10:11 Thomas: Awesome so anyway oh Just that, yeah, it is

0:10:17 Jenessa: It called the Fender Stratocaster, which I probably could have figured out that Fender was the brand and Stratacaster was a line I don't know if I could pick it out of a

0:10:27 Thomas: Yeah oh okay well that's interesting I feel like you would once you saw it right like you kind of it's just like it's universal it's the most probably recognizable electric guitar I mean nowadays I realize like nobody cares about any of this. There's people who play really good guitar, but name a guitar player from a current band, like a current young people thing.

0:10:32 Jenessa: Lineup yeah no oh

0:10:52 Thomas: Nobody's like, oh, that's the guitar player from Billie Eilish. I don't know.

0:10:52 Jenessa: Yeah

0:10:59 Thomas: Nobody cares. It's kind of sad in some ways, but also so whatever. It's inevitable.

0:10:59 Jenessa: Yeah Oh yeah because if I start thinking about like my favorite band is Queen and I'd be like brian may that's

0:11:08 Thomas: Love Queen. Yeah, of course. Yeah. That's a hundred years old, Jenessa. That is 50 at least years old or more years old. That'S not a current band. I don't know if you know that.

0:11:12 Jenessa: Not Oh no yeah like I that's a lot harder for me maybe we're just old Oh no

0:11:25 Thomas: We are just old, but I'm saying people don't keep track of it because it's all done in the studio and by producers and by, you know, or they'll have like a session musician come in. Nobody cares. It'S a different time. But if someone were to think of an electric guitar, they're probably thinking of this one or like some silly like metal one that's like the, you know, like the two points, like the triangular type thing. That's the other like common. Yeah. Yeah, I don't even know what that is, but I'm not even sure if that's a specific brand.

0:11:45 Jenessa: Oh, yeah, yeah. I can picture that. Looks like a funny star shape, right? I can see it in my mind. Don't know what it is. Okay. So this is actually really relevant because for trademark purposes, it does matter who your audience is. So if I can't pick it out of a lineup, that does not matter. You are a potential customer.

0:12:10 Jenessa: And so it matters what you think, not what I think. So keep that in mind as we go through for the trademark. It's whether you think it's iconic.

0:12:09 Thomas: Hmm. Mm-hm for sure. Yeah Right Yeah,

0:12:19 Jenessa: For the patent, it's whether YOU think it's a novel invention, not me. That's all going to be important here. So what are the potential protections you could have? The first thing is patents, specifically utility patents. Just a refresher, we did this last week, but patents are for functional inventions. You disclose how it works such that a person having ordinary skill in the art could recreate it. So enough detail that you could build your own if you know how to build guitars in general.

0:12:53 Thomas: Like you put some tab in there and they're like, okay, I can play this. Yeah I'm imagining for this Fender. They have to like play a solo with it. It's like, oh, okay. Yeah yeah, I

0:13:01 Jenessa: Boy. It has to be novel, so some innovation here. Non-obvious, you're not just combining other stuff that it would be obvious to combine. Vine. From the time the thing becomes public, you have one year to file or else nobody, including you, will ever get a patent on this thing. When you get the patent, you're going to get a 20 -year monopoly so nobody can use the invention intentionally or not without your consent. Once it expires, everybody can intentionally recreate the exact thing with no consequences. It's just like free public domain that's really a

0:13:02 Thomas: Could do that. Right. Right,

0:13:42 Jenessa: Copyright term but you can think of it that way yes

0:13:43 Thomas: But that's for like invention-y stuff.

0:13:46 Jenessa: This is all for functional inventions yep it's the first person to file not the first person to invent it only the actual inventor so it's not like you can steal my idea and just run to the patent office first it doesn't matter if it's like total coincidence you invented the same thing as me, all on your own. If I file first, you don't get a patent.

0:13:47 Thomas: Yeah, so that doesn't really apply to this. Right? Yeah. Okay,

0:14:09 Jenessa: One person. Or if we invented together, we could both get it. But once the patent is filed, nobody else is getting it.

0:14:16 Thomas: But still one patent when you do that, right?

0:14:20 Jenessa: Yes. Yes, so we would file as joint inventors, two, three, four, however many people are listed. Oh no, what have I done?

0:14:25 Thomas: Two, three, four. Oh, sorry. I thought you were going into the two, three four. That's our invention.

0:14:33 Jenessa: Yeah, so okay, if somebody steals your invention that you patented and you've got the patent, you can sue for past damages, however harmed you've been by what they've already done. And then usually going forward, you're going to go into a licensing deal. You're going get future profits. Yeah, yeah, yes,

0:14:48 Thomas: Yeah we did cover this very recently, so it's kind of a refresh from last episode.

0:14:55 Jenessa: Yeah. You usually don't get an injunction to stop them. You just go into a licensing dealer. You'd have to show irreparable harm from them using it. Fender is making guitars in the early 50s, they invent the Stratocaster in 54, and they are going to get five...

0:15:12 Thomas: I've been irreparably harmed by Nickelback playing guitar. Is there a way I can, I'm trying to think if I could work that in.

0:15:16 Jenessa: Well, the patents will have expired by then.

0:15:22 Jenessa: They're going to get 5 patents that are either directly related to Stratacaster, or at least on the Stratecaster and other Fender guitars. I've got links for them. So you can tell me just how unique this is. Now, keeping in mind, this is unique as of the 50s,

0:15:42 Thomas: Damn it. Yeah, these are pretty old. They go back a while.

0:15:44 Jenessa: Really old. So there's one for the bridge and the pickup assembly. I don't even know what the pickup assembly is.

0:15:48 Thomas: Oh, well, the pickup, so that's what creates the electric sound. So you got to have some sort of mic, essentially. It's a little microphone. So acoustic guitar, obviously the body is the thing that makes the sound, the big wooden body. And it's like, boom, you know, nice big sound electric guitar. There's very little sound that comes off.

0:16:08 Thomas: If it's not plugged in, you barely hear it. And that kind of depends a little bit on the model and stuff, but you pretty much barely hear it. But the little mic pickup things pick it. That's what the pickups are called. So that, that strat had three single coil pickup or single coil. I might have said core earlier, single coil pickups. I don't remember the technical definition between single coil and double coil. Let me look back at mine. Mine has, I think mine has two single there's like a double coil like a bigger one I don't remember why or how again I'm not a gearhead with guitar stuff but the single coil is like you can see that single it's number 20 in that diagram you just sent me I believe so it's like that little diagonal thing for some reason it's diagonal it might be some sound reason for that the double coil just be like a double of that like two lines of it usually I think but uh yeah okay so I'm looking at this - it's a very silly drawing because the body is tiny and the neck

0:16:57 Jenessa: Yeah. Yeah it's, it's it's quite silly.

0:16:57 Thomas: Is huge did it really look like this or did they just do like a shitty

0:17:01 Jenessa: Well, so this is in 51 before the Stratocaster was invented. This will apply to Fender guitars going through to 71. Any Fender.

0:17:05 Thomas: Drawing oh okay so it's like they invented the bridge and pickup stuff and then they used that in later stuff gotcha Clarence Fender I didn't know his first name was Clarense Clarence Fender that's a lot less rock and

0:17:18 Jenessa: So this'll be yeah. Yup. Yeah, it is. Now that I hear it, huh?

0:17:28 Thomas: Roll probably why we never hear the name ClarenCe with Fender the

0:17:33 Jenessa: Fender, like maybe just because saying this in hindsight, but it sounds like cool. But yeah, Clarence, not so much. Yeah. So in 51, they get this one. And I found this really cool article that was it was used to if you have a Fender guitar and you're like, I wonder what year this is.

0:17:35 Thomas: Association yeah of course ClarencE I had No idea. His first name is Clarence. That's awesome. All right.

0:17:56 Jenessa: This guy had a whole timeline breakdown of like how to figure it out. And one of the ways was based on the patent stamps on it like in this year you would find a patent number listed on the side and that's how I figured out what patents applied to the Stratocaster he had a very good list for me so this one it starts in 51 that's before the Stratecaster in 54 but it would be applied to Strateocaster and other Fender guitars this one is for the Tremolo which I think based on the picture, I can take a guess what that does.

0:18:28 Thomas: Oh, well, a tremolo is not usually a thing. A tremolo is an effect of quickly raising and lowering the volume. So if you hear a guitar, if you hear a sound that's like, you know, like that kind of thing, that's tremolo.

0:18:47 Jenessa: I was assuming it was that trembling sound. And then if you look at the diagram there.

0:18:52 Thomas: Sort of. Let me find a fine example this will be fun oh uh crimson and clover that's like a famous tremolo sounding it's that's on his voice because it's like the clover you know yeah yeah that's what it is so it's the tremolo I mean if

0:18:59 Jenessa: Oh, the warbly. Yeah, it's like an after effect, but yeah, yeah, okay. You

0:19:09 Thomas: It's it says it's a tremolo device but that's probably the device that's going to automatically create that quick sound because otherwise you'd be like trying to use the volume knob to do like you know really fast so there must be something that does that

0:19:21 Jenessa: Can see there that like little L -shaped stick that they have over the string.

0:19:26 Thomas: Well, that's the whammy bar. That's like a whammy bar. So that 37, 36, that is interesting. Tremolo device. Oh, maybe they called the whammie bar a tremolo device, so that would do like a slower. So the whammy bar, you can control it with your hand and all it does is bend the, it like bends the bridge a little bit. It so you know how if you know tighten or loosen a string it's gonna go if you loosen it'll go lower if you tighten it goes higher the whammy bar just screws into the bridge as you can see there and you use your hand to kind of rock it and then it'll like create this like they

0:20:00 Jenessa: Yeah, I can picture it. Like someone doing it.

0:20:04 Thomas: Called it a tremolo device which is so funny I guess since they invented it there wasn't the common name of whammy bar but uh tremolo the effect is just the up and down of the volume which is a little different because the whammy bar I think of is not volume it's more bending the pitch which is interesting it is that bar right the whammy bar the 37

0:20:21 Jenessa: I believe so, yeah, to provide a tremolo device which is incorporated in a novel bridge structure so arranged as to have limited pivotal movement in order that the tension applied to the strings of the instrument may be readily varied to produce a tremelo effect.

0:20:37 Thomas: That's it so that's very interesting that's tremolo now maybe tremolo the word can apply to pitch as well maybe that's what it is because that doesn't

0:20:47 Jenessa: I assumed it was the pitch warble. Yeah, I didn't know.

0:20:49 Thomas: It well it is but usually so a tremolo effect if you were just to like like if you're just doing music and someone's like I want a tremolo effect it would be volume. It would be like the, the quick, like, yeah, it's usually just a volume thing. But if it's a whammy bar, it's definitely going to be the pitch moving a little bit, but either way, it's going to be a cool, like wobbly sound one way or the other. Whammy bar allows you to do a smoother, slower one. I mean, you can, cause you're using your hand, like, so you, so it's kind of a smoother bend.

0:21:00 Jenessa: I would have assumed it was like the instrument version of vibrato. Yeah. Hmm. Okay.

0:21:22 Thomas: Whereas the tremolo effect I'm thinking of is way faster. So let me show, I'll just play like, you know, just for fun. So that's just a very quick, and it might even be honestly an on-off that they're doing, but it's a very quickly volume change.

0:21:44 Jenessa: I picked up enough to know you were playing Crimson and Clover.

0:21:47 Thomas: Yeah. So Crimson and Clover both the guitar has that sound.

0:21:56 Thomas: So you see how it's like, bam, bam. But it's actually like, you know it's just like a, yeah, so it's quick. So, that's what I think of as tremolo, but apparently it can also be the note, even though vibrato is usually the word used for singing. But, point is, this is a whammy bar. I wonder when they started calling it the whamny bar. Maybe I'll click on like the Wikipedia for that and see.

0:22:18 Thomas: I was about to close this Wikipedia on the vibrato tremolo thing and then I saw this. Though a guitar's tremolo arm can produce variations of pitch, including vibrato, it cannot produce tremolo, which is rapid modulation of volume. So I was right. However, it has become common practice for electric guitarists and manufacturers to use the term vibrato and tremolo the other way around when referring to hardware devices and the effects they produce. This reversal of terminology is generally attributed to Leo Fender and the naming of his 1954 Stratocaster mechanical vibrato system as a, quote, tremolo device for stringed instruments. So that's exactly, I was like, yeah, I know. I'm pretty sure tremolo is volume. And it's true. This freaking guy calling his thing that actually changes pitch a tremolo device is the reason electric guitarists use the terms backwards. That's so funny.

0:23:09 Jenessa: That's so funny. Huh?

0:23:12 Thomas: Wow, so there you go so I do know what I'm talking about yes it is yeah it is it's funny it's actually really neat to see this image you sent me that's the patent because the key part of the invention is going to be that the bridge which is so the bridge is the thing on the bottom that anchors the uh strings so the strings go into the bridge the bridge if you see in the figure two it's like a side view of the electric guitar instead of the bridge just being locked into the wood or whatever the material of the electric is. So in an acoustic, it's often pegs that are inserted into the guitar, but one way or the other, it's stable, I guess is the point.

0:23:12 Jenessa: It's a vibrato device. Okay okay. That makes sense. Uh -huh. Mm-hmm.

0:23:50 Thomas: And this one, the bridge is like a metallic thing that holds the strings. And then on the underside of it, like within the guitar that you can't really see, it is anchored with a spring so that that gives it the flexibility to be able to manually bend it with the whammy bar, bar, which creates a bend in pitch. So it's pretty cool.

0:24:10 Jenessa: Yeah okay. I see it now. I was looking at this and going, well, that's a bunch of numbers and sticks. So now it's making more sense to me. That's pretty cool.

0:24:18 Thomas: Yeah, no, it actually, it's kind of cool. Normally when I look at patent things, it is something I don't know about. I am like, that is nonsense. And now it is like, oh, I know what this is. That is kind of cool. That's a good invention. It is a freaking sweet invention. I love this thing.

0:24:31 Jenessa: This is why you bring in experts on patent cases because you need somebody with subject matter

0:24:37 Thomas: Sure. I just want to clarify, not at all an expert, but I at least know something. Yes, yes, sure. Yeah.

0:24:39 Jenessa: Expertise compared to me and compared to the patent examiner. We got another one for the pickup and circuit, which I'm not quite sure how that's, it must be different from the other bridge and pickup this one comes out in 57 sure

0:25:00 Thomas: Now this looks like a double pickup pattern. So before I think we only had one pickup and now we have two. I don't know if that's what's unique about this. I'm just looking at this here. I've not going to know anything about the circuit and all that. I think that's going to be relatively basic in terms of electronics, but who knows? We'll see.

0:25:20 Thomas: Oh, it's called a single coil pickup. I actually see where there's a coil. Figure two to the right, how there's something coiled around the things there. I think that's why it's called a single coil pickup is there's Something coiled Around it. Now, I don't you know, this somebody who knows more about electronics would know, but there's probably some way that that picks up the sound. Well, or something that I don' t really know about. That's cool.

0:25:43 Jenessa: Well this says it's doing a cancellation of hum caused by extraneous magnetic fields and increased signal amplitude

0:25:49 Thomas: Oh, nice. There's always with the electric guitar, the battle was always trying to get stuff, you know louder and louder. No, this is still in the late 50s. Because you think about how How quiet an electric guitar is when it's not picked up, when you crank up volume and you're trying to get something loud, any interference or extraneous sound is going to create an awful buzz. Even my guitar, my Telecaster has a pretty bad buzz, some kind of grounding thing. Like if I touch the strings, it goes away. But point is, I imagine this is probably to reduce some, as it said, some sort of fuzz in some way, because then you can get a louder guitar sound without annoying like, you know, like awful noise. Yeah.

0:26:29 Jenessa: We got another one for the adjustable neck of the guitar. Didn't even know that was a thing. They put this one on it in 64.

0:26:39 Thomas: Yeah. Oh, it says incorporating an improved truss rod and fretboard assembly adapted to be employed in adjusting the curvature of the neck. Okay. What I'm not sure about on this one is I thought they just were always like this. That's going to be a lot of this for me because this is from the late fifties and sixties. So a lot OF this is just like, this is what guitars are, you know, but I don't know like when. So this is interesting. I'm curious. It says right here, I'm confused what it used to be. So numerous present day guitars have truss rod assemblies incorporated into the necks thereof, but such assemblies are characterized by serious deficiencies relative to such factors as tendency to warp, inadequate strength, relatively high cost of manufacture. Relative to the first of these factors, the tendency to work applicant has discovered the tendency of the truss rod to bow the neck in one direction, maybe counteract or augmented by the tendencyof the fretboard to enhance or oppose. OK, this is not that interesting, but just just just for fun, since I kind of know something a little bit about it from playing. But she talked about in the Wayne's World thing, Cassandra talks about reducing the buzz of the low E string or whatever.

0:27:39 Thomas: That has to do with like when you tune down or if your guitar is just kind of out of whack, it'll buzz on the fret. So you at least know what the frets are, right? Yeah, essentially. And so there's a balance between you need to be able to hold the string down into a fret to make it be that note, right.

0:27:46 Jenessa: Because it's too loose. Right. Mm-hmm.

0:27:56 Thomas: If the action, they call it the action is like how high up the strings are. If The Action is too high, that's going to be harder to play and weird and probably sound bad. There's probably some other consequences of being too high. If it's too low, then the strings will buzz against the fret. So when you hold it down or even if it's an open string, you'll play it instead of getting a dong, you know, and so you have to keep it's a kind of a balance of a lot of things. So keeping your fretboard, the tension is key because the neck of the guitar has a lot of tension on it. Obviously, there's all the six strings are pulling on it, especially depending on the gauge of the strings and the blah, blah, blah. And so there's a lot different variables. If you change your strings, honestly, just like temperature is a big variable because they're metal. And so it looks like this invention is a better way to keep the tension and tension correct, which it looks like they already had truss rods, which is a little rod that goes in the neck that you can tighten or loosen to kind of essentially pull the neck up or down to kind of mess with that tension. It looks like there's just like a better way that also is more sustainable and keeps the neck straighter as you do it. It looks like it's probably really technical, but it looks like it's that kind of thing.

0:29:07 Thomas: It's probably something you would never think about, but it's just a basic part of the guitar sounding good and having consistent action up and down the neck.

0:29:13 Jenessa: Okay, cool. So each of these has been like innovations on a guitar, right? Like things that make a better guitar. And this one in 1960 is titled simply guitar.

0:29:27 Thomas: No one's patented the guitar yet. No, just kidding. Let's see. Oh, my God. This has a drawing of a guy sitting Wow, the guy's got a flat top almost in the front. He's sitting playing the guitar. You are meant to put it on your left leg. That's so funny. That's interesting. Anyway, because I normally like sometimes I play it with on my right leg, but it's like, oh, it almost seems like you're supposed to hold it on your left leg. But then I don't like that because then my left hand for a right handed guitar player, my left hand feels so far away from me. You know, it's kind of weird. Anyway.

0:29:59 Jenessa: You can see in figure two, he has tried the other leg.

0:30:02 Thomas: Oh, you're right. He has tried the other leg. Oh, okay. You can do either. Oh it's brilliant. So OK. So the point of this will be the shape of the guitar. OK. And now we're getting into what's like a Stratocaster shape ish thing. All right. What's the key from this one? There's a lot of text.

0:30:18 Jenessa: This is 58. This is four years after the Stratocaster has entered the market. What they're patenting here is the body shape, and in order to patent this, you are claiming it is functionally relevant. It's not just shaped like this because it's cool. It's shaped like this because it fits on your leg, and it's ergonomic, and it's a good way to play guitar. And so they go through a big description here of why other guitars are not as good to play, not like they're less cool or less fun, but like they actually don't fit as well on the body and why this fits.

0:30:58 Thomas: That is very interesting. First thing that's interesting about that is I, look, I don't know a lot of things. I'm virtually certain that all guitars were like this before this. Like, guitars were not cubes, you know, like acoustic guitars. And furthermore, here's another funny thing that I don't know if we should. Oh, oh, you know why I chose figure two, and maybe you already know this. If you picture a right-handed guitar player, it has the left leg, and that's, you know, we've already covered that. When it's on the right leg, the guitar is more in your armpit there, and it's got that feathered off, like the, the width of the top corner where your armpit goes, you can see those lines is indicating that it's like kind of, I forget the term, but it's, like, tapered off there.

0:31:39 Jenessa: It's like angled back a bit.

0:31:39 Thomas: So, that's, yeah, yeah. A little bit, or just tapered it off. Now, here's another thing that's going to be funny about this, and I don't know if this will come into play. Nobody, sorry, this is a clean, clean show. Freaking nobody plays a Stratocaster sitting down.

0:31:53 Jenessa: I've never seen it in my life.

0:31:53 Thomas: That does not happen. It's never, which is so funny because if any of this comes down to like, well, it's this way because it like, you know, it has to sit on your leg. Nobody plays a Stratocaster, like literally nobody plays a stratocaster like that. Acoustic guitar, I play sitting down. I play complicated stuff that's like finger picking. I'm not a rocker. So I sit down, but that's acoustic. When you're playing a Stratocaster, people are just rocking, they're standing up. So really neither of those two components matters at all now.

0:32:22 Jenessa: That sounds about right. It looks like we have a filing date of 58, a grant in 60. So this will expire in 1980, meaning to whatever extent this shape is functionally relevant and this shape is protectable. By 1980, anybody's allowed to do it under patent law.

0:32:43 Thomas: Right. But also, I mean, this is what's weird is it must be the combination maybe of that tapered corner because you can just Google like 1930 guitar. They're all shaped like that. Like they have the thing to sit on your leg. That's always how it's been, you know? So I don't know. I'm actually not sure how they could have gotten away with patenting that if it's like all guitars were like that, like literally just Google 19 going back forever. They never weren't like that so

0:33:06 Jenessa: Yeah, I'm trying to read here like, ah,

0:33:08 Thomas: I wonder if it is the combination of the two things because it's also maybe they tried to make it out like because you can sit it on either leg. It's got the, that thing, and then it's got the tapering. So maybe they're trying to like combine things in a unique way that makes, you know, like it seems pretty weak to me, but

0:33:23 Jenessa: Here it is. The way they describe it in their introduction, the patent may well have been granted without, it's not inherently an adversarial process unless somebody shows up to oppose you. They say, electric guitars so far, they're constructed with relatively solid bodies and that they do have these recesses and depressions but such positioning the the previous positioning of the recesses or depressions causes the guitarist to be relatively uncomfortable during playing and results in awkwardness and difficulty in achieving the proper and desired plucking or picking positions hmm

0:34:02 Thomas: Fair enough. I will say this. I do think the older, like the shape may have been more about sound than position prior to that. Cause I think if I'm reading this right and I'm looking, I'm just looking at it and guessing, I I think the curve on this strat is a little bit further back, like slightly further back so that when it sits on your leg, your right hand, your strumming hand is more in the right position. Guitar is sort of like an eight, but like the bottom circle is like fatter, you know, it's like a, like an eighth with a fatter bottom circle.

0:34:33 Thomas: So that, that curve in typically was maybe higher up on the guitar, which would have changed kind of the angle or the distance to your strumming hand. So maybe that's how they made sense of that. I would have just assumed it was always for comfort and position, but maybe it was more of a sound thing. I don't know. Interesting. Yeah.

0:34:51 Jenessa: Yeah, they're claiming this particular shape is more essentially ergonomic. This lets you position it in a way where you can play and be comfortable, more comfortable.

0:34:57 Thomas: That is so funny. Because, again, the key, nobody plays these sitting down, which is so fun. But they got this patent, though. They got this for the, okay. Yeah.

0:35:11 Jenessa: Yeah, yeah, they did get it. And then it expires in 1980, right?

0:35:15 Thomas: Okay.

0:35:16 Jenessa: What do you do once it's expired? Well, to whatever extent, you just claimed it's a functional thing, right. You can't copyright or trademark functional stuff. Off. That's not how it works.

0:35:29 Thomas: How did they do that to begin with then, I guess, is what I'm wondering.

0:35:31 Jenessa: This is in the U.S., how it works. Copyright is for creative, artsy stuff, not functional stuff. It lasts longer than patents. It is automatic. You don't have to apply for it. There is a registration process that's necessary to, like, sue over it, but you don't need to have it. You can't have it have to register it to have it.

0:35:53 Thomas: For copyright.

0:35:53 Jenessa: Yeah, for copyrights, you don't lose your copyright because you didn' t go register it, whereas, like patents, you have one year or else it's lost forever. Like patents are way harder to get and they expire. Copyrights are just like kind of automatic, right?

0:36:09 Thomas: So, patents are more, I think of them as more like technical stuff and copyright is more like intellectual like works or something

0:36:13 Jenessa: It's artistic works, you know, paintings, photography, music.

0:36:17 Thomas: Usually artistic yeah okay yeah I think that's what I meant

0:36:22 Jenessa: You cannot copyright something that is a functional invention. That's what patents are for. You could copyright something that is like separable from the functional invention If you put a drawing on a coffee mug, well, you could just as easily put that drawing on a poster or a plate or a mural. Like, the drawing is independent of the functional item. So that's fine. The shape of the guitar is not separable from the guitar.

0:36:48 Thomas: Gotcha is that

0:36:55 Jenessa: It's a functional item, the guitar, and the beautiful shape of it, no matter how creative that decision making was, it's not independent of it. What is the shape of a guitar without a guitar?

0:37:07 Thomas: True well I guess what I'm thinking is you could have a guitar of a different shape

0:37:12 Jenessa: Right, but the shape a guitar absent a guitar.

0:37:16 Thomas: I see you can't like okay we're getting philosophical we're turning into yeah yeah exactly it's like aristotle or something

0:37:18 Jenessa: What is that sound of one hand clapping? It's not a thing. Yeah, right. But what is the picture I drew on the coffee mug absent a coffee mug is the picture.

0:37:23 Thomas: Yeah platonic ideals yeah gotcha gotcha okay I see

0:37:33 Jenessa: You cannot copyright in the US the shape of the guitar body because it's a functional item.

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0:37:44 Jenessa: We do have a thing that bridges this gap called a design patent. Every time we've talked about patents previously, it has been a utility patent, which is the functional invention. Design patents kind of bridge the gap where there's an ornamental aspect. It's inseparable.

0:37:57 Thomas: Yeah I was gonna say because like a a volkswagen beetle or something it's like that's very distinct but the car doesn't have to be shaped like that to work

0:38:11 Jenessa: Exactly. So it's inseparable from the car and it's not the function of the car. It's this ornamental creative decision. We have design patents for that and they expire after 15 years instead of 20, like a utility patent. You can kind of protect it. And they did get one for the Fender. They get a design patent that covers the shape of this guitar, this sort of S curve with the two horns on top thing. So the link I sent you is the design patent.

0:38:45 Thomas: 1953 we've got this is a bass

0:38:49 Jenessa: I mean, that's, oh, is it really?

0:38:51 Thomas: Yeah that's four strings it is the same type of shape

0:38:55 Jenessa: Perhaps the source I was using has incorrectly attributed this to the Stratocaster.

0:39:01 Thomas: The shape is very similar but this this is most certainly a bass.

0:39:05 Jenessa: Okay. So it's a design patent for the ornamental design. This says for the ornamental designed for a guitar. Is guitar a generic name that would include a bass?

0:39:16 Thomas: Yeah. A bass guitar, a bass is a bass guitar. But they are very different. This isn't a Stratocaster. You wouldn't call it a Strad though. You know what I mean?

0:39:19 Jenessa: Oh yeah, Yeah, yeah, yeah. Okay, yes. Okay. Oh, all right.

0:39:25 Thomas: It's not that. But it may be like they first did the shape for a bass maybe. I don't know.

0:39:30 Jenessa: Okay so is that shape, just ignoring the strings for a second. Oh yeah, it's four strings. It's a bass. So that shape would be the same body shape as a Stratocaster.

0:39:33 Thomas: Yeah, it's very Stratocaster. Yeah pretty much. It looks it's going to be a little longer for a base, I believe, but it's pretty much the same. So maybe that's where he first used it or something no

0:39:42 Jenessa: Okay all right so that might be why they are applying this patent number is listed on Stratacasters to cover the shape. So they got a design patent that would have expired expired 15 years later. It can't be copyright. It's part of a functional item. It is ornamental, so you can't get a utility patent. They're saying like, you know, the horns and everything, that's not like functional, right? That's just cool.

0:40:14 Thomas: That is I think that is kind of functional to be honest but I could be wrong I mean how long they are I guess and you know that could be for fun but you do need that horn looking thing to have that recess where you can sit

0:40:24 Jenessa: Hmm. So you couldn't just chop those off. Okay.

0:40:28 Thomas: If you lose the ability to sit with it well it wouldn't really affect the sound but that patent that we talked about I don't think it was about sound it was about like ergonomics right so it would probably affect that yeah

0:40:36 Jenessa: Right. That one was utility. This one is supposed to just be the design, the ornamentalness protecting that. Yeah.

0:40:44 Thomas: Okay so like exactly Exactly how long they are and their precise look, I could imagine, is kind of like, that's like ornamental. Yeah, sure.

0:40:52 Jenessa: To whatever extent that's valid, they did get the design patent on the overall body shape. You can have overlap on these. You could get a design patent and a copyright in a way you could never get a utility patent and copyright.

0:41:06 Thomas: Interesting.

0:41:06 Jenessa: You get a trademark and a design patent. What is a trademark? It is something you use in commerce to identify your goods. It's iconic of the brand you see x you think of our brand it tells you a single source for this item your brand name is obvious for that the logo clearly fits that you use it in commerce you make sure it's not too generic it's Not too similar to somebody else's mark that's already taken you see somebody else use it you send a cease and desist and there you go that's your your trademark. If you ever see like TM for trademark, that could kind of mean anything. It could mean intent to use it as a trademark.

0:41:52 Jenessa: It could be registered with a state. It could mean your federal registration is pending. If you see the little R, that means it's registered with the federal trademark office. Official. Trademark.

0:42:04 Thomas: That's so funny. I would have thought it was like the opposite. Like TM seems so like, you know, oh, TM. I know that. Yeah.

0:42:07 Jenessa: It does, right? So the R is like kind of protected.

0:42:11 Thomas: Interesting, okay? Hmm.

0:42:11 Jenessa: You have a federal trademark register. TM is like, I'm telling you it's my trademark. Don't touch it. Similar to the C with a copyright. You could just put that there. And it's trying to tell people, I intend to protect this as my copyright.

0:42:25 Thomas: You better not. Yeah?

0:42:25 Jenessa: You can't claim a good faith defense like, oh, I didn't know. You knew. You knew I meant to protect it, right? Obviously, your name, brand name, brand logo. You can also get things like the design features. So you ever drive past a building and there's no logos or anything, but you're like, that used to be a Pizza Hut.

0:42:46 Thomas: That's a combination pizza to talk about. Yeah Yeah, yeah.

0:42:48 Jenessa: Yeah, you can just tell, right? That can be trademark.

0:42:53 Thomas: Interesting

0:42:53 Jenessa: It is iconic of the brand. You see it and you think of a Pizza Hut. And so they can stop Pizza Butt from making a restaurant that is shaped like that.

0:43:01 Thomas: I wouldn't recommend you call your thing pizza, but I don't think that's going to work anyway. Yeah. Pizza nut. Yeah. No, that's bad too.

0:43:08 Jenessa: I was trying to think of the first thing that rhymed and made a terrible mistake. Oh no, that's even worse. Oh God. It's not just the name Fender, obviously able to be trademarked. You think, you hear Fender. You Think Guitars. Stratocaster. You hear Stratocaster. You think of a line of guitars. Not a problem to get a trademark on that, right? But it could hypothetically also be the shape of it. You see that and you think of Stratocaster. Or do you they got a trademark on the head shape yeah yeah the like the fact that it's like angled and the pegs are all on one side

0:43:42 Thomas: The headstock? Oh, wow. Yeah, sure. If they invented that, that is pretty unique because they all used to be, like you said, they used to kind of be a, not a square, but yeah, not exactly like that. For an acoustic, yeah, you would have the three on each side.

0:44:07 Jenessa: I'm pretty sure it's the slanted angled thing is what's like their trademark iconic they claim you look at that and you think Fender.

0:44:18 Thomas: You know, that might be right. I actually have never thought about it. Gibson electrics don't have that. Oh, I didn't. That's so funny. I've never thought. I'm not a Gibson electric guy. Huh. Fair enough. That is pretty iconic, honestly.

0:44:27 Jenessa: 91, they're able to say, you look at that angle, you don't think guitar or electric guitar, you think Fender electric guitar. Trademark. Nobody else is doing the slashy shape. We're going to stop you. In 2009, they refused a trademark on the body shape.

0:44:50 Thomas: I have always taken this for granted. You are totally right. If you look at every, basically the main famous electric guitars, none of them have that, that is only a Fender thing. I did not know that. That's so funny, I think it's because I've only actually I've played Fender electric, so I just took it for granted. I was like, oh, I guess electric guitars do it this way is what I always thought. That that's funny. Cool.

0:44:59 Jenessa: Yeah, isn't that weird? And they've protected it.

0:45:09 Jenessa: Huh. So I'm going to send you a picture from their attempt to trademark the body shape. So if you look at that, do you think I don't just think guitar? I don'T just think electric guitar. I think Fender when I look at this outline.

0:45:26 Thomas: I look at Strat, Telecaster, Strat. I don't know why the two outsides are different. One might be a bass and one might be guitar, maybe. But the middle is a Telecaster.

0:45:33 Jenessa: Maybe I looked at that and I said, that's a ditto. That's a Pokemon. Ditto the Pokemon.

0:45:42 Thomas: Sorry, I don't know that. That's the shape. No, that's a pretty iconic shape. To the point where I could tell you, all she has showed me is a pencil outline of a shape, by the way. And the middle one is for sure a Telecaster and again, I'm not a gearhead and I could tell that, but I do own a Telecaster and the, the outsides are Stratocasters. One's wider, one's, one skinny or so. I'm guessing one is a bass unless they have like a different, I'm not familiar. There might be like a difference. A different Strat, line of Stratocaster, but I'm guessin' one of those is a bass and one's the electric guitar.

0:46:12 Jenessa: So this is a perfect illustration of why in trademark work, You have to get the proper audience. It doesn't matter that I can't tell what that is. You are the target audience and you were like, that's not just a guitar. That's not just an electric guitar. I can tell you the make and model of guitar by looking at that.

0:46:33 Thomas: Roughly, yeah.

0:46:33 Jenessa: That says iconic. That says trademark.

0:46:37 Thomas: I could do that with the Gibson as well. And I'm, again, I am not a gearhead, but they're the shapes are pretty, to be honest, they are pretty iconic. Like you, you, kind of know what they are.

0:46:47 Jenessa: So this would normally lead you to be like, oh, trademark. You're gonna get a trademark on that yeah the design patent expired where you said this is the ornamental thing on our shape but then it became so iconic of the brand we could get a trademark which your I mean your trademarks only expire when you stop using it in commerce when it loses iconic status right you want that you super want that

0:47:14 Thomas: Right so you want that because you're gonna yeah way more profitable

0:47:20 Jenessa: Right an opposition happens they're in the middle of trying to get this trademark, 17 different guitar makers file an opposition. They find out about this and they see it in the official Gazette, a prospective trademark. And they say, hey, we have a couple of problems. So in order to oppose a trademark, you have to have standing, which is I would be damaged if you gave the registration. I would have to make my guitar is different. This happens in 2009.

0:47:46 Thomas: Okay and sorry what year are we at right now gotcha okay

0:47:53 Jenessa: Number two, there are valid legal grounds why the applicant is not entitled to the mark and the burden is on the opposer. So like the trademark office is going through the legal rights to the Mark, but it's like, it's not a fully adversarial thing. We're just adjudicating. Oh yeah. Okay. That sounds good. What do the opposers say? We've been making guitars roughly in that shape for decades it's not iconic of a Fender it's iconic of an electric guitar there are tons of electric guitars that look like this so your reaction says to me maybe that's not so true

0:48:31 Thomas: Yeah I have seen guitars that are roughly this shape I assumed they were knockoffs and I guess I never thought about like are they legal knockoffs or not I don't know and and it also when you have something like a shape like this, I imagine it's a little tricky to be like, at what point are you doing that shape? You know, are you a little off? Are you, you know, is it reminiscent of it? So I do think that guitar makers have on purpose copied the shape as much as they could in order to honestly, probably profit off of that image in a way, because they've done that. Maybe they're kind of right in that there are a lot of guitars shaped like that, but that is a pretty, I like that specific, those specific Specific proportions, in my opinion, they are they are the guitar like that. It's a it's a certain look.

0:49:15 Jenessa: Yeah based on your reaction and my knowledge of trademark law, I would have to agree that that is exactly what you'd be thinking is, yeah, you copied the look, not because that's the way you have to make a guitar, but because that'S the cool -looking Fender Stratocaster guitar that everybody wants, and so you made yours look like that to sell more guitars, right? Right?

0:49:39 Thomas: And this is where I was going to tell you this. You could make an electric guitar out of like a freaking shopping cart metal like you could but you could put because so little of the sound and in fact, it may be zero but almost none of the the sound is because of the guitar and the shape and the wood.

0:49:57 Thomas: I've seen videos on YouTube where they make an electric guitar out of virtually nothing. You just need the strings and the pickups. That's really what you need. I mean, you have to have enough structure to hold it and to do the frets and all that, but you don't need any part of that shape for sound. It's not functional in that way in any way at all. It could cut all of that out. In fact, there are electric guitars that people make that are almost, they're very minimalist. Like it's just, there's like a wood block. That's like the shape of where the strings go. So it's like barely, it's almost like the whole thing's a neck that works fine as an electric guitar. The sound will sound pretty much identical. Like It's it's, it might be slightly different. So that argument to me, isn't very good.

0:50:38 Jenessa: That is a possible way in trademark to say there's really only so many ways to make the thing. That's a good defense, but it sounds like what you're saying is, no, you could make your guitar shaped a lot of different ways, my friend. We all know what you're doing. Well, that's not what happens in 2009.

0:50:58 Thomas: I don't know. No.

0:50:59 Jenessa: They filed in 2004 and it was ultimately decided in 2009, you are not going to get a trademark on that body shape.

0:51:07 Thomas: Wow. Okay. That'S man. I kind of disagree with that I don't know let me send you this video here he's not playing it with distortion so it won't sound like what you're expecting check that out yeah you can make an electric guitar that's like a stick it still works perfectly

0:51:11 Jenessa: Based on what you're saying, again, I'm not the guitar expert, so I couldn't make an opinion. Oh, it's literally a stick.

0:51:42 Jenessa: Okay. Yeah, so they don't have to have the S shape and the asymmetry and the the two horns and all of that.

0:51:45 Thomas: Fine absolutely not nope well to the point I mean the other famous electric that you thought of or recognized was that crazy like like triangle one yeah or whatever yeah that's not nothing like that and it's plenty of people play those so I kind of think this is bullshit. I don't know.

0:51:56 Jenessa: Yeah, the star -shaped thingy. Yeah. Yeah okay.

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0:52:09 Jenessa: So essentially here's what happens. Your design patent is expired. You can't under U .S. law get a copyright for a functional item and they lost out on the trademark. So everybody starts making that body shape. So what do you do? You could just say well I guess everybody's going to make that body shape and there's going to be Fender guitars out there. Well, they couldn't do that because the name is trademarked, the name Fender. What you end up with instead going to Germany, because I'm going to send you an image. One of these guitars is a Fender Stratocaster. Oneof them is a shuffle awful guitars sent from a Chinese company to Germany via Ally Express for 62 euros.

0:53:03 Jenessa: You can see I have blurred out the branding on the head because I would obviously give it away.

0:53:08 Thomas: I mean, if you're allowed to copy the shape, I don'T KNOW HOW YOU WOULD TELL THE DIFFERENCE. I WOULD GUESS THE SECOND ONE IS THE STRAP, BUT I DON'T KNOW.

0:53:13 Jenessa: So the second one is the Strat, but they are admittedly quite similar, right?

0:53:15 Thomas: OH, THAT'S NICE. YEAH. THEY ARE QUITE SIMILAR.

0:53:19 Jenessa: This is an obvious attempt at a knockoff. If it said Fender or Fenger or Stratocaster or Strad or Strada Blaster, like Like, in the U .S., you'd be doomed, right?

0:53:32 Thomas: MM - HMM.

0:53:32 Jenessa: But the body shape isn't trademarkable, so what are you going to do? It's not design patent. It's the utility patent's gone. But in Germany, you can get a copyright on this. The first thing I want to make clear is I am almost certain that most of the English speakers you see talking about this have not actually read the goddamn thing. Because it took me forever to find this. I was losing my mind. Dan reminded me that now Google search is all stupid AI powered and that instead of searching keywords, I should yell at it. So I have sent you a screenshot of me screaming at it, Fender default judgment document, Germany. I want the actual document in German from the court. Court.

0:54:19 Thomas: Oh this is too real this is too too relatable yeah I curse at my AI sometimes I'm not above it

0:54:25 Jenessa: God damn it, you asshole, give me what I want. At which point, at which point the AI lies to me and said it is a non -public record because it can't find it. It's in German. And the most average answer to why can't I find this court document is not, I don't know, it's, oh, it must be private.

0:54:45 Jenessa: So it lies. And then I click through one link after another until I finally find in in the German language, and then translate into English via Google Translate, the actual decision. I'm going to tell you right now, most people probably did not go through the headache I went through and are telling you what they think under American law, what this German document probably said. No. I'm not going to do that.

0:55:14 Jenessa: I am going to hesitate to interpret German and EU copyright law because I don't actually know that and I am reading it through Google Translate.

0:55:21 Thomas: But the point is no one no one that's covering this probably knows that right yeah so we might keep you getting a lot of bad info out

0:55:25 Jenessa: Probably not. Yes, a lot of people are harping on the fact that it was a default judgment. That Chinese drop shipper, you might be shocked to learn, did not show up to court. I saw people portraying that as like, oh, because they don't have jurisdiction or whatever. Yes, they do. If you ship to a country, that country has jurisdiction to say whether you have a right to sell your items in that country.

0:55:33 Thomas: There right yeah

0:55:52 Jenessa: You have to respond to complaints. You should always respond to the complaint in general. The thing that's really interesting is in the U .S., when you get a default judgment, it's not a judgment on the merits. I sue you, you don't show up, and the judge goes, all right, I guess you win. And they don't write, like, you also had a really good case.

0:55:49 Thomas: What yeah doy hmm

0:56:13 Jenessa: Germany does not have an adversarial system of justice. It's like inquisitive or something. The judge does investigations over there. So the judge wrote pages and pages about why the Stratocaster can be copyright under the European Court of Justice and German copyright law.

0:56:12 Thomas: Oh oh huh

0:56:34 Jenessa: That would never have happened in the U .S. with a default judgment. Judgment. Yeah. So if you see U .S. lawyers saying, well, it's a default judgment. It's not a judgment on the merits.

0:56:30 Thomas: Wow no our judges are lazy as shit no I'm just kidding they're over they're ever worked in our systems different oh well

0:56:46 Jenessa: The judge wrote pages and pages about why this is copyrightable, despite the fact that the defendant never showed up. He still wrote all of that. He or she. I don't even know.

0:56:58 Thomas: I remember from the super soaker show that a lot of those decisions don't go to a jury anyway so it would be a judge in any case So it's sort of like kind of makes sense maybe that I know it's not our system, but it makes sense that you could still in absentia almost be like, well, the judge can still like determine this.

0:57:05 Jenessa: Right. It could be. Sure. Oh, yeah. There's no reason a judge hypothetically couldn't do that. But they typically don't do this, like, fact finding. If you don't even show up, they're like, why would I waste my time? You win, whatever. Right.

0:57:27 Thomas: Yeah. Our system is so overloaded. They just don't want to. Yeah. They're not going to touch it.

0:57:31 Jenessa: And it's just not how it works. It's an adversarial system. And if there's no adversary, we don't issue merits information. Take it with a grain of salt, this word default judgment. It's a totally different court system over there. They say under German copyright law and European Court of Justice, it's a big deal that, like Like, this was the first time Germany integrated new rules about copyright from the European Court of Justice. Like, if you work in EU copyright law, you should definitely read this. Apparently it's a big deal.

0:58:03 Jenessa: Under those laws, you can copyright the Stratocaster body shape. And this is where it all blows up. They finally have a ruling that lets them say, we can protect our body shape in Germany and probably the rest of the EU based on this. And now they're saying do not import your nearly identical guitars to Germany and maybe don't import your merely identical guitars the rest of the EU and maybe while you're at it stop manufacturing it because it could end up in Germany see what's happening here absolutely

0:58:35 Thomas: So they are trying to take it as far as they can. Yeah.

0:58:38 Jenessa: And you know your attorney is going to do that unless you tell them otherwise right they're going to take it as far as they legally reasonably can from there it's all based on so far cease and desist letters

0:58:52 Thomas: When you say it, it's all you mean this news cycle, this kind of because people have been outraged about this. Right. We probably didn't adequately cover that, but people have been kind of scared and outraged about it.

0:59:02 Jenessa: Yeah yeah that's not inherently public guitar .com has said they have obtained a redacted version of this cease and desist letter that went to multiple guitar manufacturers it basically said to these people your guitar is nearly identical to the stratocaster resistor you are infringing cease and desist marketing these guitars we will assert our rights against you if you keep doing that it's pretty standard cease and Desist right there's a lot of stuff flying around about what exactly they're going to make them do Fender claims this is all being blown out of proportion we're goingto only go after people who are making identical or nearly identical guitars so like they're claiming they're gonna keep going after what is essentially the the counterfeiters, right?

0:59:06 Thomas: Cease and desist letters. Sure. Right. Sure.

0:59:55 Jenessa: Obviously the other manufacturers are disputing that. They're saying we won this trademark dispute for a reason because it's actually generic by now and you don't have the rights. 2009 in the US. Some people are saying the letter ordered us to destroy all of these these guitars.

1:00:07 Thomas: Right. The one in 2008 or whatever you said? Nine? Yeah. Gotcha. Huh.

1:00:19 Jenessa: Fender is saying, no, no. We're not going to say that about everybody who makes this S -curve or has a horned guitar. We are not trying to stop that. We just trying to stop the nearly identical ones. We really won't know until there's a court filing, which almost certainly it sounds like there will be a court file at some point soon.

1:00:41 Thomas: In the US or just in the EU and stuff?

1:00:44 Jenessa: I would have to guess it's going to come up in the US because they have sent these cease and to at least one US -based company so far.

1:00:52 Thomas: But did they send it saying, because you can't sell in Germany, though?

1:00:57 Jenessa: So it's still directed at supposedly sending it to Germany or the EU, not at selling within the US. These things always get weird because of international treaties where like, we respect German copyright over here. Now they're not saying they have a a copyright in the US, because they can't, but if they have a copyright in Germany, could they try to enforce it over here? Not under US copyright law, but could they tried to under trade agreement? Like it gets weird really fast.

1:01:04 Thomas: Gotcha. Yeah. Right. Yeah. Interesting. Interesting.

1:01:34 Jenessa: A lot is unknown. What could they and couldn't they enforce? I don't know, I think is the most confident answer I can give you. And I'm seeing a lot of people be very, very confident about what a letter that's not public has said, at least as of recording. Yeah, a partially redacted letter that's not public.

1:01:49 Thomas: Yeah, that's been like partially redacted. Yeah. For all we know, it could be telling them don't do any of this in Germany, right? Or don't, you know, like, which seems legit, like but maybe they're based out of here, but they might be shipping stuff to Germany and they won't be allowed to do that.

1:02:08 Jenessa: And there's also a problem where like sometimes people will go, I don't know if I want to call it overboard, but they'll say like, well, because your guitar could end up in Germany, you can't even sell it online at all because you can'T stop a German person from purchasing.

1:02:22 Thomas: Oh, how legal is that, though?

1:02:25 Jenessa: Depending on your level of protection, that could be totally legal. Sometimes, depending on many different factors, Like, that's the problem, right, is I can't give you a definitive answer here. We are still, at the end of the day, resulting from them suing one, I would say pretty obvious counterfeiter, like intentional counterfeitor from China who did not show up to defend themselves in one court in one country that, like, for all we know, this might even not get carried over to the whole EU.

1:02:56 Thomas: But this is getting badly misreported because people aren't realizing that default means something different in Germany, possibly.

1:03:03 Jenessa: I think that's a huge part of it. This judge wrote pages about why Stratocaster does get copyright under German copyright law and possibly under EU copyright law. He didn't just say, you win, stamp, go home. And if you're a U .S. lawyer, you would think that's what a default judgment means, unless you read this document.

1:03:24 Thomas: Wow, I'm so glad you're here to set us straight.

1:03:27 Jenessa: Yeah, I don't want to go much further in saying whether the judge is right about that or, like, whether it'll hold up, because I donno, EU copyright laws.

1:03:35 Thomas: Sure, but point is, in the U .S., you can still make that shape and not be Fender, right?

1:03:42 Jenessa: At least so far and they're saying immediately stop manufacturing supposedly in this redacted letter release

1:03:51 Thomas: Yeah, but we don't know if they're talking about literal knockoffs versus just using the shape.

1:03:56 Jenessa: According to fender they're they're claiming they only sent it to people who are making identical or nearly identical products according to fender

1:04:04 Thomas: And who knows, you know. Okay, wow, what a fun deep dive, though. Anything else we should know about this or we really just need to keep an eye if there's any actual litigation then we could kind of be able to tell but for now it's just one side's kind of selective sharing of a cease and desist and we don't for sure know what it means doesn't

1:04:07 Jenessa: Yeah we shall see yeah right

1:04:46 Thomas: Really seem likely

1:04:48 Jenessa: Could go all the way to they are like suing mom and pops for attorney fees of millions of dollars to stop them from making a guitar that's similar but not that similar and none of this holds up but you just dragged a mom and pop through the mud and they lose their business over attorney's fees or they go after a couple of people who are doing knockoffs I mean there's one that is like uh oh ps something john mayer made a guitar with them that to my eye is pretty obviously a knockoff but I did they would probably not like me calling it that

1:05:03 Thomas: Well but again it's well but in america it's fine right like there's nothing wrong with that yeah

1:05:06 Jenessa: In america that would be fine they can't protect it in the u .s will they be able to in the us go after that company based on this it will all depend on international treaties and whether we're willing to respect what that german court said or could stopping them from sending it to germany make it impractical I mean the u s is probably their biggest customer base right

1:05:16 Thomas: I wouldn't think so well shouldn't you have a firm answer on like if there'S a german patent thingy but not in in the U .S., if you just make it and distribute it in the U. S. You're fine, right? Or are you saying there's some way you might not be?

1:05:43 Jenessa: You might not be so like okay if it was patents I could give you a much more firm answer we have have a treaty that like most countries have signed on to where if you get a patent in one country other countries will respect it.

1:05:55 Thomas: I always assumed that applied to like them selling it here, but you mean even within their own country?

1:06:01 Jenessa: No no that would be like if I got a patent in the U .S. on a product and then a German company ripped off my patent I could go to Germany and enforce it. Germany would respect our patents and there's like a laundry list of countries on this treaty. There's a whole bunch of international stuff you should to do to better protect your patent, but in general, in patent law, most countries will automatically respect your patent to an extent. It's better to go register over there too.

1:06:30 Thomas: But to your point, it still seems up in the air because if we have a specific court decision, that's like, no, I feel like that might be a little different.

1:06:38 Jenessa: We would probably say, yeah, but U .S. copyright law works different, so we might not. Yeah, it's up in the air.

1:06:46 Thomas: So we got to keep an eye on it.

1:06:48 Jenessa: Yeah. What I would really say is you need to be an expert in U. S. copyright law and E. U. copyright and German copyright law and international treaties of copyright law law to actually answer this question yeah

1:06:59 Thomas: I think I just need to be a TikTok maker. So it's all you need to have the expertise that you need answers. All right. Well, that was a lot of fun. Really learned a lot. And yeah, we'll keep an eye on it to see. We can't say for sure right now. And that's the best answer that the internet never wants to tell you.

1:07:18 Thomas: The internet always wants to be sure, but right now we can't be sure. So we'll have to keep an eyes on it. Well, thanks so much, Jenessa. And thanks listeners.

1:07:19 Jenessa: Yeah good talking to you

1:07:26 Thomas: We'll see you next time. That's a hundred years old, Jenessa.

1:08:05 Jenessa: God damn it you asshole give me what I want

1:08:09 Thomas: But it's actually like. Thank you.