Is it wrong to put a Fender logo on a partscaster?

[serialsteve]

Originally Posted by unzari

So I guess it's just more "speculation, assumption and conjecture" on my part, just like yours was.

Mine's not speculation. I'm well aware of US Trademark and IP law. Job hazard.

Agreed on the moral picture being very murky though.

[tcadam]

Originally Posted by serialsteve

A lot of speculation, assumption and conjecture here. There is no "morality" in what is and what is not "legal" and trademark and intellectual property law is no different. I do not violate the law if I put a Fender decal on my personal partsocaster any more than if I put a Coca-Cola decal on the headstock (which I did at one point in the 80s). You own your personal property and can deface or alter it any way you see fit.

Where you run afoul of the law is when you attempt to pass something off when selling as something that it isn't (ie a partsocaster being sold as a real Fender with a Fender decal on it). I have a Tokai neck on a Warmoth body that I made spec'd out to a '66 Custom Telecaster in every way possible. That's a "replica" and I put it together from components that I purchased. I didn't make the decal, but it was one that I picked up from a Vintage show (an old authentic NOS Fender decal from the 60s-wish I'd waited on a replica!). I owned the Fender decal and I owned the neck.

That being said, I will never sell the guitar and if I do, I would not leave the decal on the neck, but remove it entirely, even though I slightly modified/personalized the script (so there is no confusion that it is not the real deal, even though I wouldn't have to). THAT would possibly become a legal AND a moral issue.

If I want to build a dead-nuts Gibson Explorer in my basement as a replica and put a Gibson logo on it for my own enjoyment/entertainment, that is not illegal. If I SELL it or offer it for sale, it would be. There are no trademark damages unless the maker or seller has benefitted from the illegal use of the mark. If I sold it and it sold (even if only a minute contributing factor) because it had a logo on it, that could be actionable.

I'm not going to lose sleep about having a logo on a guitar that will never leave my hands-I built it because what I wanted was not available (and still isn't) and hasn't been since the 60s.

I think you're right that it's not a big deal in your scenario but I would question what you mean when you say you "own" the decal. In my opinion ownership of the decal would be very similar to how you might a own a book, cd, or other published work. Your ownership only extends to the physical media (e.g. the paper or plastic) and does not convey any rights to you to do with the artist's work, or trademark, what you choose. For example, you can throw it in the trash but you can't reproduce it or you can watch a DVD at home but not in a bar. I don't think that you'll find any case law supporting the idea that a trademark is only infringed when the item is sold. There is no justification that I know of for the idea that a trademark holder has to prove that there were damages prior to acting against those infringing on their trademarks.

[serialsteve]

Originally Posted by tcadam

I think you're right that it's not a big deal in your scenario but I would question what you mean when you say you "own" the decal. In my opinion ownership of the decal would be very similar to how you might a own a book, cd, or other published work. Your ownership only extends to the physical media (e.g. the paper or plastic) and does not convey any rights to you to do with the artist's work, or trademark, what you choose. For example, you can throw it in the trash but you can't reproduce it or you can watch a DVD at home but not in a bar. I don't think that you'll find any case law supporting the idea that a trademark is only infringed when the item is sold. There is no justification that I know of for the idea that a trademark holder has to prove that there were damages prior to acting against those infringing on their trademarks.

You just further illustrated my point. Just as with a copyrighted item, when you purchase the item, you "own" it and can use it for whatever personal use you wish as long as you aren't using it in any manner of trade. You create an issue when you decide to enter the stream of commerce. As far as damages go, there does not have to be a profit to have damages established by the mark owner, if that's what you're trying to say.

[unzari]

Originally Posted by serialsteve

You just further illustrated my point. Just as with a copyrighted item, when you purchase the item, you "own" it and can use it for whatever personal use you wish as long as you aren't using it in any manner of trade. You create an issue when you decide to enter the stream of commerce. As far as damages go, there does not have to be a profit to have damages established by the mark owner, if that's what you're trying to say.

I think you guys mean "damage" and not "damages", which is another thing entirely. Again, this is just my opinion, but but damage or injury would probably be presumed.

I understand and respect your position, Steve, but I'm not sure if I agree with it, although you're right that it would be in the marketplace where TM infringement cases are found. But MUST they be found there? I guess that's my question for you. Also, I'm not sure if your copyright analogy holds water: I can use copyrighted materials w/o any consideration flowing my way and it still could be a breach of copyright. For example, burning a CD of copyrighted music and giving it to someone. No trade there, but it still violates copyight.

But it's Boxing Day, I'm drinking and trying to figure out the solo to "O My Soul" (I love Alex Chilton sooo much), and there's no way I'm gonna drag out my IP texts! But I think it's definitely an interesting and important issue.

[serialsteve]

Originally Posted by unzari

I think you guys mean "damage" and not "damages", which is another thing entirely. Again, this is just my opinion, but but damage or injury would probably be presumed.

I understand and respect your position, Steve, but I'm not sure if I agree with it, although you're right that it would be in the marketplace where TM infringement cases are found. But MUST they be found there? I guess that's my question for you. Also, I'm not sure if your copyright analogy holds water: I can use copyrighted materials w/o any consideration flowing my way and it still could be a breach of copyright. For example, burning a CD of copyrighted music and giving it to someone. No trade there, but it still violates copyight.

If you burn a copy of a copyrighted CD and give it to someone else, you receive an implied benefit with or without you receiving actual "consideration" in a monetary form and you are thus exceeding your "license". Being in the legal profession, I can tell you that you won't find TM infringement cases anywhere but in some form of market situation because that's where actionable events occur.

However, back to the more important issue-Happy Boxing Day. I'll tip a Tullamore Dew back for ya this evening! ;)

[RiverDog]

I should probably mention that the back of the headstock (of the guitar in question, which I'm in the process of buying) has the builder's "custom shop" logo as well as the word "Tribute" on it. Does that change anyone's opinion?

[unzari]

Originally Posted by serialsteve

If you burn a copy of a copyrighted CD and give it to someone else, you receive an implied benefit with or without you receiving actual "consideration" in a monetary form and you are thus exceeding your "license". Being in the legal profession, I can tell you that you won't find TM infringement cases anywhere but in some form of market situation because that's where actionable events occur.

"Some form of market situation" is right, and very broad! A person gigging with said type of guitar would be using the instrument "in some form of market situation", I'd think. But you'd say that Fender would have absolutely no cause of action here? Not sure, but then by now I'm sure it's pretty clear that I don't work in IP (civil lit).

Enjoy the Irish!

[microphonic squeal]

Originally Posted by Califatboy

All those guitars that are made from real and correct parts are simply a sum of those parts less the one important ingrediant - WHO assembled it? If it wasn't assembled by fender...no fender logo - regardless of the parts.

I have to disagree with that. I have a '92 Stevie Ray Vaughn Strat that the neck broke off (don't ask how). I put a 74 telecaster maple neck on it (the real deal, logo from the factory), and I am NOT scraping off the logo.

[RodeoTex]

Don't we do this conversation about once a week?
Seems that people have strong feelings ranging from illegal to Ok, and everything in between.
I kind of middle-of-the-road.

Having said that, I did find someone using my name on ebay to sell guitar parts I had nothing to do with and felt totally violated. BTW, ebay would not do anything about it since I do not hold a copyright on my business name. Who would have thought this could happen- kind of like making fake CII Squiers. Still it was unsettling.

[BellyBoy]

Yes, it's wrong!

[bendecaster]

I think it's your call. You didn't put the decal on it. You will find many opinions for either side, but you're the guy who has the final say.

[TDPRI]

Originally Posted by fierce_carrot

KF is also DEAD...and there appears to be NO LEGAL transfer of this to his heirs according to ANY govt documents I have been able to find..or anybody else for that matter.

Sorry, but this happens automatically at his death. Nothing need be filed or recorded. His heirs own all the trademarks they do not disappear at Ken's death. It is very much trademark infringement.

[TDPRI]

Originally Posted by microphonic squeal

I have to disagree with that. I have a '92 Stevie Ray Vaughn Strat that the neck broke off (don't ask how). I put a 74 telecaster maple neck on it (the real deal, logo from the factory), and I am NOT scraping off the logo.

Of course you don't have to remove the decal. What on earth makes you think you should? He said, if it wasn't made in a Fender factory... what part of the body and neck of that guitar wasn't made in a Fender factory? Yeah, see, it's OK.

[TDPRI]

Originally Posted by copytekk

I should probably mention that the back of the headstock (of the guitar in question, which I'm in the process of buying) has the builder's "custom shop" logo as well as the work "Tribute" on it. Does that change anyone's opinion?

Actually, that makes it worse in my opinion. Fender should sue that guy if he's got that kind of "tribute" operation going.

[esteban]

I don't think it's really a big deal unless you try to sell it. I've seen Triumph badges on Suzuki Savages, Ferrari decals on an MG, and there's nothing wrong with that. One should be allowed the freedom to adorn their possessions with whatever badging he or she wishes, but everything changes come selling time.

[Chaparral]

Originally Posted by Durtdog

... It's hard to believe (especially on a forum dedicated to the Telecaster guitar) that there's any debate about this kind of thing...it's fakery. It's just pretending to have a Fender guitar.

If "it just doesn't look right without a Fender decal" or your image demands that people see "Fender" on your headstock, then buy a Fender.

[/b].

Call me a big faker. But if I build a telecaster and it's setting on the stand next to my computer and there's a decal on it of something other than what Fender would use, to me, it just doesn't look right. Maybe I can build a particular guitar that I want faster/cheaper than I can buy the "real" thing for? Maybe that's why I'd do it? I'm not doing it to con anyone, I would just do it because it looks right to me. My image doesn't demand anyone to see it, because I play at home and no one sees me 'cept the wife and the dogs-and they don't care.


Besides, wouldn't having any Fender "copy" just be fakery and "just pretending to have a Fender guitar"? Wouldn't any guitar with the Fender Telecaster body and neck design be just a fake? Why isn't this band of internet Telecaster supporters up in arms over all of the partscasters and 80s Tokais and knock offs out there that are simply bold face lying imposters of the great Fender guitar?

If you're going to build a guitar that looks exactly like a Fender guitar...then I believe the pretending started way before the decal.

But me, I'm a pretender!

[Ignatius]

The legal aspect of this issue is crystal clear, but what's interesting to me about this discussion is the implication by some of you that it is "immoral" to apply a Fender decal to a partscaster.

If that's the case, why isn't it also "immoral" to build a partscaster, which is essentially a copy/knockoff/imitation of a Fender design?

[CSS]

I had a guitar once opon a time that Fender should have sued themselves over. It said Fender "The Strat". POS..... ! No way was that a real Fender guitar!

Now about the original post, It is your guitar, put whatever, or leave whatever you want on it. You bought it my friend and it is all YOURS!

-Craig

[TG]

Originally Posted by Ignatius

The legal aspect of this issue is crystal clear, but what's interesting to me about this discussion is the implication by some of you that it is "immoral" to apply a Fender decal to a partscaster.

If that's the case, why isn't it also "immoral" to build a partscaster, which is essentially a copy/knockoff/imitation of a Fender design?

Exactly.



This thread has made me think about the whole issue and I'm starting to think that I'd prefer not to have a Fender logo on my partcasters anyway...and not for any legal or 'moral' reasons.
Having a 'real' modern-made Fender guitar is getting to be like having a 'real' BigMac, IMO.

[Arc Angel]

Originally Posted by Califatboy

All those guitars that are made from real and correct parts are simply a sum of those parts less the one important ingrediant - WHO assembled it? If it wasn't assembled by fender...no fender logo - regardless of the parts.

If Picasso's brother-in-law "Irving" painted a picture using Picasso's brushes, easle, paints and canvas...does that make it a Picasso?
[/edit]

Well, what about Clapton's Brownie or Blackie. Put together out of "real and correct" parts after parting dozens of Strats in an attempt to find an ideal body/neck match.

The resulting guitars did not come out of the factory assembled that way, etc. Same for David Gilmour's Black Strat, etc.

BTW: there is a store I know that routinely put Fender decals on the Nash Guitars it was selling. It also builds partscasters and puts Fender logos on them, trying to sell them for a hefty profit (Allparts, etc.). It brands them one way but puts Fender logos on them (no mention of the 'brand' on the guitar at all).

Not an actual Fender, why the need for a Fender logo? It may not "look" right without the logo, but its not "right" to put it on IMO.

[PeterUK]

Originally Posted by Arc Angel

Well, what about Clapton's Brownie or Blackie. Put together out of "real and correct" parts after parting dozens of Strats in an attempt to find an ideal body/neck match.

The resulting guitars did not come out of the factory assembled that way, etc. Same for David Gilmour's Black Strat, etc.

Good point! And if I discovered a [insert year here] classic/vintage Telecaster body fair but truss rod broken, and I replaced it with a custom made neck to the original specification, had pick ups rewound and a refinish, THEN put a Fender decal on it, would it be a restoration or a very expensive partscaster with an illegal/immoral/unlawful/[add emotive word here] decal?

Peter

[dibber124]

Originally Posted by TG