Fender attack on the clones

[arnie65]

Well as I retired Lawyer mysaelf, I can say that the reasoning of the "Blues Lawyer" is mostly sound but not dispositive. You can sometimes record a judgment that was taken by default into another jurisdiction. And often, it is about litigation cost, not good law that decides the outcome of a case.

Well, I think that after listening to this 2nd video, the outcome of this case might be written on the wall....

[Litterick]

Well, I think that after listening to this 2nd video, the outcome of this case might be written on the wall....

…in German. Fender took a case to a court in Düsseldorf. The court confirmed Fender owns copyright to the shape of the Stratocaster body. Fender then appears to have instructed its lawyers to send cease & desist letters to every manufacturer that advertised Stratocaster copies on Thomann Cyberstore, an e-commerce site based in Germany. Nevertheless, this blues lawyer assumes Fender will take its case against PRS to an American court.

He dismisses the possibility that Fender will take its case to a German court because he assumes PRS does not have a German subsidiary to sue. But Fender could sue Daniel & Detlef Brauns, who describe themselves as 'your contact for PRS Guitars in Germany and Austria,' on the PRS Germany website. Fender could also sue Thomann or any other business in Germany sells the PRS Silver Sky.

Fender could return to the Düsseldorf Regional Court and obtain injunctions against these businesses, preventing them selling guitars that infringe its copyright and demanding restitution. Fender could take its case to courts in other EU member states. If PRS cannot sell its Stratocaster copies in Europe, it could lose a lot of future income: Europe's guitar market was valued at USD 4.92 billion in 2024.

PRS may come to regret poaching John Mayer from Fender and copying the Stratocaster body to make a signature guitar for him.

[Ol' Fret]

What the ruling by the Regional Court of Düsseldorf establishes is that a specific Chinese company—one of negligible market significance—is no longer permitted to ship Fender Stratocaster clones to Germany or the EU. This company had evidently been offering precise replicas of Stratocasters via Alibaba. Such activity is prohibited throughout the EU, pursuant to both German law and a new provision of European law. For instance, German customs authorities also seize—whenever they manage to intercept them—Far Eastern replicas of Rolex watches. Although Rolex is headquartered in Switzerland, it maintains a subsidiary in Germany. Asian-made watches that do not replicate every external detail of an original Rolex have always been permitted to be officially imported and sold without issue. Naturally, however, the protection of the trade mark itself must be ensured.
As a side note—and as an indication of the general sentiment regarding the inexplicably growing "Ugly and Amoral" demeanor (which, thank God, represents—albeit a significant—only a *portion* of American society thus far): many people in the EU would likely not even be surprised if it were to eventually emerge that Fender had, in some form or another, "used" this Chinese company as a pretext for initiating such injunctive proceedings.


Fender "won" this lawsuit solely because the defendant—the Chinese party—failed to respond or appear in court. This Düsseldorf ruling does not apply to any other manufacturers—unless, once again, the case involves highly precise copies of Fender instruments that could be legally construed as a deliberate attempt to mislead customers. A glance at the Thomann website reveals that, even after May 25, 2026, Strat-style guitars—specifically those under the "Harley Benton" brand, among others—continue to be offered there without interruption.


Fender has utilized the Düsseldorf ruling - in a manner that is highly questionable from both a legal and a human perspective - to exert global pressure on other manufacturers, dealers and private musicians, citing an allegedly existing copyright supposedly established by this very judgment. According to German *Urheberrecht* (copyright law), product designs are protected only if they qualify as "art." Parts of a product that are clearly not "art"—because they serve a non-artistic purpose—are not protected by copyright. There are very few parts of a guitar that clearly serve no practical purpose and can therefore be regarded as "art"—such as the shape of the headstock. Fender's argument—that the body contours of the Stratocaster resemble a female dancer leaning to the right (or something to that effect)—has provoked uproarious laughter here. Fender ought to be required to pay a licensing fee to every woman in the world... However, claims regarding copyright and "artistic merit" require a clearly defined basis. Yet Fender itself—even in the original U.S. patent for the Stratocaster—never provided precise specifications or supplied any verifiable measurement data.


In any case, Fender must be up to its neck in trouble. Fender’s demand to receive complete lists of "Strat-style" guitars sold to private customers in the past—with the intent of destroying them—further demonstrates that Fender’s lawyers, whatever legal maneuvers they may be planning, cannot possibly be familiar with legal norms and practices within the EU. EU data protection laws strictly prohibit retailers from releasing such private customer data under these circumstances.
The excrements Fender have spewed out will likely be something they have to swallow themselves over the course of the upcoming legal proceedings. A reputation built over years—even decades—can be utterly destroyed in the blink of an eye.

[Litterick]

What the ruling by the Regional Court of Düsseldorf establishes is that a specific Chinese company—one of negligible market significance—is no longer permitted to ship Fender Stratocaster clones to Germany or the EU.…Fender "won" this lawsuit solely because the defendant—the Chinese party—failed to respond or appear in court. This Düsseldorf ruling does not apply to any other manufacturers—unless, once again, the case involves highly precise copies of Fender instruments that could be legally construed as a deliberate attempt to mislead customers. A glance at the Thomann website reveals that, even after May 25, 2026, Strat-style guitars—specifically those under the "Harley Benton" brand, among others—continue to be offered there without interruption.

I will answer by quoting from an appraisal of the judgment made by Guillermo Criado, Director of International Business Development at Pons IP, an Intellectual property consultancy based in Spain.

The recent judgment handed down by the 14th Civil Division of the Düsseldorf Regional Court in the case of Fender Musical Instruments Corporation v. Yiwu Philharmonic Musical Instruments Co. (14c O 64/25) confirms, in the defendant’s absence, that the design of the body of the Fender Stratocaster guitar constitutes a work protected by copyright in Germany. It further states that the commercialisation of guitars that substantially reproduce that shape constitutes an infringement of the right of reproduction (Vervielfältigung). The court prohibits its distribution within Germany, subject to a fine or a prison sentence in lieu thereof and orders the defendant to pay costs.

Fender has utilized the Düsseldorf ruling - in a manner that is highly questionable from both a legal and a human perspective - to exert global pressure on other manufacturers, dealers and private musicians, citing an allegedly existing copyright supposedly established by this very judgment. According to German *Urheberrecht* (copyright law), product designs are protected only if they qualify as "art." Parts of a product that are clearly not "art"—because they serve a non-artistic purpose—are not protected by copyright. There are very few parts of a guitar that clearly serve no practical purpose and can therefore be regarded as "art"—such as the shape of the headstock. Fender's argument—that the body contours of the Stratocaster resemble a female dancer leaning to the right (or something to that effect)—has provoked uproarious laughter here. Fender ought to be required to pay a licensing fee to every woman in the world... However, claims regarding copyright and "artistic merit" require a clearly defined basis. Yet Fender itself—even in the original U.S. patent for the Stratocaster—never provided precise specifications or supplied any verifiable measurement data.

The legal basis of the decision lies in the classification of the Stratocaster’s body as a work of applied art (angewandte Kunst), within the meaning of Articles 2.1.4 and 2.2 of the German Copyright Law.

Fender's argument—that the body contours of the Stratocaster resemble a female dancer leaning to the right (or something to that effect)—has provoked uproarious laughter here. Fender ought to be required to pay a licensing fee to every woman in the world... However, claims regarding copyright and "artistic merit" require a clearly defined basis. Yet Fender itself—even in the original U.S. patent for the Stratocaster—never provided precise specifications or supplied any verifiable measurement data.

Applying the CJEU’s standards of originality—which define a work as an intellectual creation of its own that reflects the author’s free and creative decisions and is identifiable with precision and objectivity—and those of the Federal Court of Justice, which focus on the individual imprint and the expression of the creator’s personality, the court analyses the morphology of the Stratocaster’s body. It highlights the deliberate asymmetry, the gentle curves, the proportions and three-dimensional recesses, as well as the integration of the pickguard and the cable outlet as compositional elements. Taken as a whole, these features confer an unmistakable identity on the design.

[Litterick]

In any case, Fender must be up to its neck in trouble. Fender’s demand to receive complete lists of "Strat-style" guitars sold to private customers in the past—with the intent of destroying them—further demonstrates that Fender’s lawyers, whatever legal maneuvers they may be planning, cannot possibly be familiar with legal norms and practices within the EU. EU data protection laws strictly prohibit retailers from releasing such private customer data under these circumstances.

Fender has not made such a demand. Bird & Bird's letters are consistent with the Act on Copyright and Related Rights, which requires an injured party to notify the infringer before instituting proceedings in court. The notification gives the infringer 'the opportunity to settle the dispute by entering into an obligation to desist from infringement accompanied by an equitable contractual penalty.'

[aquin43]

Any copyright can't have just now come into being but must date from the original conception of the Stratocaster. That was a team effort. Everyone seemed to be content to let Leo Fender put his name on any patents that flowed from it but is very unlikely that there would be any written agreement as to the division of ownership of a copyright at that time, since it was not expected to exist. So why should the current Fender company think that they are the sole owners of the copyright and not include the descendants of the original contributors?

[John A.]

Any copyright can't have just now come into being but must date from the original conception of the Stratocaster. That was a team effort. Everyone seemed to be content to let Leo Fender put his name on any patents that flowed from it but is very unlikely that there would be any written agreement as to the division of ownership of a copyright at that time, since it was not expected to exist. So why should the current Fender company think that they are the sole owners of the copyright and not include the descendants of the original contributors?

At least in the US, an employer or party commissioning a work typically owns work created by an employee or contractor commissioned to do the work. As a result the corporation owns the copyright, not the people who authored it. But there are situations where that isn't so, such as when a contract says the employee or contractor retains rights.

Rights to the work persist for however long the copyright law says they do. If the company is sold, part of what the buyer gets is usually the company's intellectual property. So it's possible that the current owners of Fender own the copyright, but there are a lot of "ifs" in there. Someone challenging Fender's claim would be able to make Fender provide evidence that the Strat is a work of art, that Fender owned its copyright when it was created, that subsequent owners purchased the rights, and that the rights are still enforceable. IANAL or in any way expert in this stuff, so no predictions from me. But it all could be bluff on Fender's part.

[Litterick]

At least in the US, an employer or party commissioning a work typically owns work created by an employee or contractor commissioned to do the work. As a result the corporation owns the copyright, not the people who authored it. But there are situations where that isn't so, such as when a contract says the employee or contractor retains rights.

Rights to the work persist for however long the copyright law says they do. If the company is sold, part of what the buyer gets is usually the company's intellectual property. So it's possible that the current owners of Fender own the copyright, but there are a lot of "ifs" in there. Someone challenging Fender's claim would be able to make Fender provide evidence that the Strat is a work of art, that Fender owned its copyright when it was created, that subsequent owners purchased the rights, and that the rights are still enforceable. IANAL or in any way expert in this stuff, so no predictions from me. But it all could be bluff on Fender's part.

The Regional Court of Düsseldorf says in its judgment at III(1)b:

The Plaintiff [FMIC] also has standing to sue. It has demonstrated that in 1985 it acquired all intellectual property rights (among other things) to the body design of the "Stratocaster" by way of universal succession from "Columbia Broadcasting System, Inc.", which in turn had previously acquired the rights from the original rights holder "Fender Electric Instruments Company Inc.", whose employee Leo Fender was at the time of creation. As the exclusive licensee, it is therefore the owner of the exclusive right of use within the meaning of Section 31 (3) UrhG.

[Litterick]

Any copyright can't have just now come into being but must date from the original conception of the Stratocaster. That was a team effort. Everyone seemed to be content to let Leo Fender put his name on any patents that flowed from it but is very unlikely that there would be any written agreement as to the division of ownership of a copyright at that time, since it was not expected to exist. So why should the current Fender company think that they are the sole owners of the copyright and not include the descendants of the original contributors?

Copyright begins when the ideas is “fixed in a tangible medium of expression”, in the words of the US Copyright Act.

Leo Fender owned the company and led the team. They were his employees. Forrest White, George Fullerton and Don Randall are all recorded in Tom Wheeler's Stratocaster Chronicles (p56) as saying that Leo Fender designed the guitar.

In any case, Leo Fender sold the entire company, including its intellectual property, to CBS, which sold it all to the current owners: the Fender Musical Instruments Corporation.

[GuyBoden]

Copyright begins

"The modern guitar evolved from various stringed instruments like the lute and vihuela, with significant developments occurring in Spain during the Middle Ages."

What about the Spanish, surely they deserved a share of the loot, especially the Luthier "Antonio de Torres Jurado"?

[Litterick]

"The modern guitar evolved from various stringed instruments like the lute and vihuela, with significant developments occurring in Spain during the Middle Ages."

What about the Spanish, surely they deserved a share of the loot, especially the Luthier "Antonio de Torres Jurado"?

The modern guitar is a point of departure. When IP people say 'state of the art' they mean the level of development reached before the new thing that changes everything.

[GuyBoden]

In England, we've played "9 pin Skittles" for thousands of years.


When the pilgrims went to America in 1620, the Puritans later banned "9 pin Skittles", so playing "9 pin Skittles" was deemed illegal.


But, the pilgrims who really liked playing "9 pin Skittles" just added another skittle and called the game "10 pin Skittles", which wasn't illegal in Puritan law.


After a while, "10 pin Skittles" became "10 Pin Bowling".