IP Attorneys Break Down Fender's Claims

Ajouté : 2026-06-01

[00:00:21]What soothing music to start what might otherwise be a contentious conversation.

[00:00:27]>> We like to put everybody at ease.

[00:00:29]Um, I'm so glad to welcome back uh Lauren and Brian to the podcast. Two attorneys that have joined us on other occasions to talk about the Clone Centaur lawsuit. And some may even go as far to say that you're, you know, soothsayers in terms of your ability to be able to predict the likely outcomes of the case. you pretty much both spot on predicted how it was going to go with Behringer and and Cla and uh today we've brought you back to talk about one of the sort of most consequential pieces of news in the music industry in recent months which is all about the lawsuit that Fender or or I guess the potential lawsuit that may happen based on Fender's issuing of several cease and desists to companies based on on a ruling that had occurred in Germany due to a default judgment. And so today, what we're going to do is we're going to have some professionals in the field sort of break down some of the of some of my questions and Brian and Grant's questions in addition to maybe speculating on what the likely outcomes might be if you are a company in this position, what you might consider doing and how to kind of best fight this. uh if your plan is to in fact fight this and um maybe sort of just get a better idea of the landscape instead of just hypothesizing as many of the folks on YouTube have done already to maybe get something a little bit more concrete from again professionals such as Lauren and Brian. So welcome to you both. Thank you for coming back.

[00:02:11]>> Thank you Mason. Happy to be here.

[00:02:13]>> Yeah, thanks for having us back. This is uh the highlight of my week.

[00:02:20]Yeah, this is this is a little little lower stakes than a deposition or anything like that. So, uh, >> get to talk about guitars in the law.

[00:02:28]What could be better?

[00:02:29]>> Right. Right. Well, I I love it. I love it. Well, um I think that the the place where where maybe we can start is, you know, I think I think at this point we're sort of going under the presumption that most people have heard about this lawsuit or this the cease and desist, I should I should rephrase and and sort of the the potential for for some sort of, you know, legal proceeding in the future.

[00:02:57]But maybe Lauren or or Brian, can you maybe sort of just start us off by just what is it that we know in as far as sort of any sort of you know u actions that have been put forth by Fender? Is there anything actually like actionable legally speaking that has proceeded so far as far as the the uh sort of the news about Fender and then the the uh their you know default judgment in Germany? What's sort of kind of like the landscape at at this moment as you see it? Um as far as you know sort of Fender's relationship to other potential companies that might be making Stratacastaster style guitars.

[00:03:42]I think the the landscape in the United States is very different than if you are in the EU or the European Union or you're you know doing business there because as you mentioned the ruling that Fender is now waving around and their cease and desist letters is from a court in Dusseldorf Germany uh interpreting European copyright law which is different um than the the laws in the United States. And I think a key component of any intellectual property law, whether it's patents, copyrights, or trademarks, which is what we talked about last time with the clone and the Behringer cases, is that they're territorial. Um, they apply and are enforced by the countries that enact them. And not all countries uh do the same things or have the same requirements that the United States does. uh and that is true here. The copyright laws and uh requirements to get copyright are very different uh than the the fundamental uh components of that counterpart in Germany. And so you can get all the rulings you want from whatever, you know, countries you might want to get, but that coming into the United States, if it's not a United States, you know, legal opinion or order, it has about as much effect as the paper it's written on. Now, it can be a very persuasive piece of paper, but in terms of a legal effect, um, it's not going to be able to apply and force to companies in the United States if it's from somewhere else outside the United States.

[00:05:28]>> Got it. Got it. So I guess that then that that leads me to sort of is there any legal implication that that US companies have at this moment if they are not exporting to to the EU and they have been they have received a cease and desist from Fender. Is there anything that they need to start doing in this moment as far as you know actions that they should be taking or a as you sort of characterized in in in the in this particular moment it seems like this is more um this has more implications for people that are exporting to the EU or that are making these instruments natively in the EU. Do do American companies that are not exporting have to be that concerned about this at this moment or like how would you advise somebody in the position of I'm an LSL or you know these are some notable companies that have sort of been outspoken about receiving a cease and desist. What should kind of their actions be in your opinion? I always tell clients that you should take cease and desist seriously because it is um someone asserting a claim or you know uh threatening to uh assert some legal rights. But whether or not they're actually going to do it or do or can do anything about it um is very much a gray area. A lot of times companies send CES into des just to see if something will shake out of that tree. Uh because it's a relatively low dollar way to see if maybe you can get someone on board or you know get someone to call their insurance carrier and see if they can get coverage for the loss or whatever, you know. Uh and if they don't respond, maybe you don't follow up. Maybe you send another nasty letter. But a cease and desist is not doesn't have the weight and force of anything behind it.

[00:07:25]It's not a lawsuit. Uh it's not a court order. It's not a subpoena. It's nothing like that that you have to comply with.

[00:07:33]But I do would say take it seriously.

[00:07:36]Look at it. Uh and get counsel to determine whether or not you need to respond um and take action cuz sometimes they can be uh people have legitimate gripes, right? you can get a cease and desist if if you are um doing something you shouldn't be doing and it's your it's a good chance to take a step back and fix it before it turns into a lawsuit if there is truly a claim there here I think and what we're seeing with LSL and I think with the um the company who hired the um Fox Rothschild lawyer who's also the lawyer who by the way defeated the Fender trademark application back in 2009 in the United States They're pushing back, right?

[00:08:21]They're saying, "You don't get to do this. Um, you don't have a claim.

[00:08:25]There's nothing here." And that Fox Rothschild letter, um, really goes through in extreme detail kind of the history of the dispute. Uh, I don't normally put that much detail in my cease and desist response, but it gives really good context to show, hey, you don't have a claim here. This is a German court default judgment. you you're you don't have any standing to sue in the United States. So I if you're truly just making products that might be implicated in the United States, I would have a hard time taking this all that seriously.

[00:09:02]>> Got it. Got it. And and and you're speaking specifically there there's been a document that's been floating around.

[00:09:08]Um, I'm gonna send it to you to you, uh, Brian O, so you can put it up on the on the screen, but I believe that this is one of the I don't know who it's from, >> uh, or like which company is responding to this because presumably there's been, you know, tens, 20s. I I don't actually have an idea of how many um, how many actual companies have received cease and desist. I think just as of this morning, uh PRS had confirmed that they had received one as well for the Silver Sky.

[00:09:42]>> Um which is kind of their John Mayor signature instrument. Um but I just sent it to you Brian and and this is the one of the responses that is has been circulating uh regarding the the season just so so you would say so this is the company uh whoever has uh retained their services that defeated Fender back in the mid200s. You were saying Lauren?

[00:10:04]Right. So in 2009, Fender tried to well, it was probably more in 2008, but in 2009 was when the decision came out, but they tried to apply for a trademark uh to protect the design of the guitar. And it was opposed. And the guy who who successfully led the charge kind of on behalf of a bunch of of you know, guitar u makers and and artisans and all of that uh was like this is generic. This is in the dictionary next to the word guitar is a picture of this guitar, right? Uh and he was successful and the trademark application was ultimately denied by the trademark trial and appeals board. The same lawyer who did all of that and who is, you know, has a deep base of knowledge particularly with this client and this uh this uh type of industry is the one who sent the cease synthesis letter response back to the German uh Fender lawyers.

[00:11:10]>> Got it. Got it. in and you you had mentioned to me sort of offline that the the company that Fender has retained for for their sort of legal uh you for the issuing of these seasoned desists it's an American company correct it's not a German company >> well Bird and Bird it's an international law firm >> okay yeah >> but are they one of the largest as far as IP stuff is concerned >> yes >> just because one I I know not nearly as much about copyright as Lauren does. So, I'm going to take my moments to say something relevant, very uh uh try not to jump in too much, but one thing about lawsuits is that they don't happen often like people think they happen. If you look at TV, some something happens, right? And then 30 minutes later, everybody's in a courtroom and that's the the goal is to sort of win the lawsuit, right?

[00:12:06]>> Right. here.

[00:12:09]Just the fact that smaller companies are going to get cease and desist letters, that they're going to potentially have to take some legal action, that's a real consideration. Lawyers are not cheap.

[00:12:21]Uh, and so if you are one of the small builders, it may be even if there, you know, there isn't a big likelihood of success in a lawsuit. Lauren can talk more about that, but just the fact that you're going to have to potentially respond to one or take some legal action, it may make more sense to just enter into some sort of agreement with Fender to continue producing your guitars, some sort of licensing agreement or whatever. So, it's not always the direct, hey, this violates the law, so we're going to go win a lawsuit. A lot of the times the lawsuit is just sort of the background for whatever action somebody else whatever agreement uh or benefit you know a company can get by threatening legal action. So it's it's important to sort of look outside of the context of just winning a lawsuit.

[00:13:07]>> Right. Well, if you if with that said, Brian, and I and I want to break from from talking to give Brent or Grant and Brian a second to to to interject, but if you're reading between the lines at the moment, what would you guess is the the sort of maybe the the hidden objective of all this? Do you think it's as simple as just trying to get all of the these companies that are making sort of replicas of Strat Stratacaster style bodies, you know, um, for their instruments in some sort of licensing thing so that they Fender just has another source of income that sort of acknowledges the sort of origins of sort of the inspiration of these other sort of boutique manufacturers or do you think that there may be other ones in addition to that or not that at all?

[00:13:56]What would you sort of be or what would be your guess as to sort of the real agenda here behind the scenes?

[00:14:03]>> Well, again, I think Lauren is going to have much uh better specific insight about this. And I will say that unlike the clone situation we talked about where there was an actual trademark application fut um and they were further along in what was going on. uh it was a little easier to read the tea leaves there knowing you know the very little that I know about Fender politics. I do remember that reading at one point whether true that when John Mayer left Fender it was because they wanted him to display only his Fender amps and not any of the other stuff that he used.

[00:14:40]He could still continue to use doubles or whatever. There's that and there's also the fact that Fender, I mean, everybody makes a Stratacaster copy, right? The home building market or the, you know, the parts caster market has exploded in the past 20 years and people are making a lot of money about it >> and clearly since at least, you know, 2008, Fender's been trying to protect that. So, one, I think it could be trying to get a licensing agreement because smaller shops that can make, you know, guitars with less overhead, they can make a lot of the parts casters are better than like the the Strat you're going to pull off the wall at Guitar Center, whatever that is straight from Fender just because of different business, you know, economics. So, one, I think Fender is trying to sell more of their guitars by keeping, you know, some of the cheaper uh parts casters off the market. Uh, I think they are trying to get some licensing agreements going and, you know, they're a company. They're trying to figure out a way that they can continue to make money and protect that sort of legacy shape because it's a opportunity to do so. Just sending out the season.

[00:15:51]>> Yeah. Lauren, any any speculation?

[00:15:54]>> I don't know what they're doing other than brand suicide. Uh you I'm not sure the end goal here because, you know, these these guitars and these guitar shapes have been around for a hundred years, you know, more than that. I I mean, they're ubiquitous. They're synonymous. Uh and in the in intellectual property world, we would call those either generic or, you know, descriptive. like this is one of the things like I said earlier that the trademark board said in denying the application was this is what is used in the literal dictionary next to guitar to illustrate what a guitar looks like. Um and there is a concept in the law uh called the doctrine of latches or a stoppple which is a lot like when if you've laid behind the log for so long and allowed the stuff to proliferate for so long you don't get to pop up 50 years later and be like oh now it's a problem right people have come to rely on and depend on the state of the law as it is >> and you don't get to show up here after I've started my business, invested my time and money, hired employees, you know, inked manufacturing deals and say, "Oh, now this thing that we've allowed to happen, if that's truly how, you know, you're looking at it, we've allowed it to happen, has to stop."

[00:17:19]That's that's not going to work for me.

[00:17:20]That's not legally permissible. And if you're going to come in here and wave this like German default ruling, which in and you know, in case you don't know what um a default ruling is, it's when the other person doesn't show up. Uh so they you can file a lawsuit. Anyone with $400 and an internet connection or access to a you know, post office box can file a lawsuit, right? If the other side doesn't show up, you win by default. Um and so that's what happened over there in Germany. So now I I I'm truly I'm not sure what they're doing. I don't know what harm they're truly trying to remedy. I can't imagine that they are that concerned about these mom and pop shops or these hobbyists, you know, cutting into their market share or something like that. So I I don't know if they just have a new leadership over there or something that wants to take a stronger hand in this going forward. Um, it's hard for me to understand the motivations behind this because it just seems like you're going to piss a lot of people off who love your product and want to, you know, copy. A good, I think, counterpart to this is um, you the musician Taylor Swift, right? She she is very protective of her IP and she has a lot of trademark protections, but she allows people and fans to expand on that, right? And when she was doing the tour, like people were posting all these videos with their own kind of art that went around it and the friendship bracelets and using her image and because she understands that that kind of press and publicity around her work helps her. Um, and >> I had no idea you were such a big Swifty Lord.

[00:19:14]>> Aren't we all deep down?

[00:19:15]>> I'M THE TARGET DEMOGRAPHIC, BRIAN. I mean, you know, uh, I went to her concert. I I was like, I'd had a two-month old baby and I, you know, >> you strapped on the airgo baby during all the 10-minute all too well and that, you know, it was great. Um so but but she yeah I she understands >> not only trademark and intellectual property protect protection strategy but the benefit of allowing the power of your work to to speak for you uh or to speak now as you might say. Uh so that's that's kind of I don't know what vendor is doing. I guess is maybe the best way to answer your question. That's especially true because the music market or the music industry compared to other industries is a lot more democratized, right? Or you know, I guess not maybe democratized is not the word to put, but like there's not a lot of situations where Coke and Pepsi are in the same room, right? Like as far as business is concerned, they're sort of enemies or, you know, adversaries or whatever.

[00:20:26]They're not working together to help, you know, forward the soft drink industry along all that much. I don't think music is different. You know, pedal manufacturers are fans of each other. Uh I I've seen, you know, all of you promoting products from different uh uh companies and saying, you know, this is a great pedal, this is a whatever. It is a much more collaborative experience.

[00:20:54]And so the backlash that Fender's getting uh that I can see is really interesting concern considering you know they really do need to to consider how much the this industry is based upon just everybody kind of getting along much more so than other industries. But at the same time it's not completely I don't know I think there are two sides of this coin. I think the fact that I and really I do think this has a lot to do with the silver sky because in any other industry if John Mayer had left Fender or when John Mayer left Fender and went to PRS and they made a guitar that looks a lot like a Stratacastaster.

[00:21:38]If you were in any other industry, there would be a ton of different protections from all different sides to to not make that happen, right? Like if you left Coke and then went and made another soft drink that's red and had swirly type and tasted like Coke, Coke would send you a cease and desist and everybody would think that that was okay. I think the fact that the music industry is a little bit, you know, looser with everybody being nice to each other. Um, it makes this a different situation, but it's something to consider. Mhm.

[00:22:12]>> The thing I'm uh I'm very interested on here, and I don't know how much you guys can speak on this from maybe equivalent or similar experiences you guys have had with other industries, other companies, but especially in this day and age of social media and lots of opinions.

[00:22:29]Whether they're informed or not is irrelevant, but there's lots of opinions online. And I'm even just thinking of right now what's going on with Ferrari.

[00:22:37]They just launched an electric vehicle and their stock price plummeted. And I'm just seeing uh I'm curious what you guys can say to this fact of what I'm reading online right now is Fender is Goliath, mom and pop shops are David, and you have this giant going after all these beloved people. And I'm curious what the ramifications are going to be to Fender's uh you know bottom line essentially just because they are attacking people that can't really defend themselves. Like if someone much larger than me, let's say a Vertex Effects was out there, the the giant of the pedal board industry came after Goodwood Audio. Uh you know what I mean?

[00:23:20]Like there's I I couldn't do anything about it. I can't afford a million dollar I don't know what the costs are.

[00:23:26]$500,000 lawsuit. Like, it's just not an option for me. And so, right now, I think people are very much uh vilifying Fender. And I don't know if that's right or wrong. Uh I don't I don't understand the the legal side of this nearly as much, but I would be interested to see outside of all the legalities here, what happens to Fender in the short term, even what happens to Fender just as far as public sentiment. like are people still going to love Fender 6 months from now because of this this lawsuit? And I'm curious if you guys can if you have any experience in other industries or other similar scenarios >> or if it's just too you know can't really speak on that.

[00:24:10]>> Yeah. I I mean it I'd be curious as well. I think people are probably still going to love their Fender guitar, right? Like I mean I think when you are that um entrenched in the history of this thing like there's a lot of nostalgia and fond memories and you know everyone probably has one you know not everyone but yeah it's going to be really hard to I think um ding that right but that's that's maybe different like the actual guitar and what it means to you personally. Uh, separating that from the brand. You may never buy one again, right? You may think that they're that they're um, you know, [ __ ] or whatever and and never go there again and and go, you know, frequent popular, you know, more hobbyist shops or um, you know, your neighborhood uh, artisan instead. Um, and so is that going to hurt Fender's bottom line? You know, I don't know how much of a movement away from buying their products. This doesn't seem targeted to get people to buy more Fenders because it this has been going on for so long. you know, and they had come out with here is our brand new we figured out we found Leo Fender's like longlost notebook and he has this new that is just, you know, amazingly uh, you know, different and produces the most amazing sound and only costs $10 to make. It's revolutionary. Here's it.

[00:25:50]Here it is. I can see them being aggressive about protecting a market disruptor. Um, but this is like, and I don't want to offend anyone, but this is like the the Toyota Camry, right? Like, everyone has one. It's been around forever. It's a sedan. It's got four doors and wheels and like you know what? And and and I again, if that upset people and you're losing viewers on the live stream, I will just see myself out. But that's >> a good analogy. We we we're not we're trying to protect something that everyone has or has access to, right? And is immediately recognizable. Um the time to like take these steps was 50 years ago or whatever. So >> yeah.

[00:26:37]>> Well, what what's interesting about your analogy, Lauren, which uh my question is honestly, who is Fender's market, right? Like of course with the the cheaper Mexican made Strats, it's going to be beginners and hobbyists and things like that, but if you're talking about touring professionals and things like that, I'm I'm just off of a quick Google, like a Fender Custom Shop is five grand, right? Like there are not a lot of gigging musicians that have five grand sitting around to buy a Fender Custom Shop. They might have two grand, right? Well, if you have two or three grand, you can look at some of the smaller builders. You can get a really quality instrument for two or three grand, right? You can go to I'm just thinking of the ones that I know off top of my head, but like sir or Nash or whoever, right?

[00:27:26]>> Yeah.

[00:27:27]>> If you're faced with 5,000 versus, you know, 2,000 and getting, you know, let's call those comparable instruments, of course, the smaller builders are going to get more of the business. And I think that may be where Fender's rub is is that there is a cheaper model that is just as good or better uh for those sort of pro guitars. Um and the market is kind of constricting. The economy is kind of constricting. So who can buy a high-end guitar like that?

[00:27:59]>> Yeah.

[00:27:59]>> Uh is going to get affected. Um I think that maybe this season because like Sir doesn't I I don't know of one, but Sir doesn't sell a $500 guitar. Nash doesn't sell a $500. They don't like that market is already squarely in Fender's pocket.

[00:28:14]It's really the the smaller boutique companies that are making guitars that are candidly probably better than the mass marketed stuff that really only, you know, they're selling custom shop style guitars for half the price. Um, and so Fender could be trying to uh protect against that.

[00:28:37]That's an interesting perspective because I agree. I think in in sort of the sub$2,000 category, they don't really have much competition. You know, I I think, you know, in in the Dusseldorf um ruling, that was just sort of like a very very budget level strat.

[00:28:54]I mean, that's that's probably where the the only place where they would realistically have competition against sort of their sub,000 guitars is by, you know, AliExpress or something like that, making sort of Strat style knockoffs.

[00:29:07]But principally, at least from those who we're hearing from that are that are making Fender style or Stratacaster style guitars, they're all their their lowest priced instrument might be$22 to $2,500. So, it seems like that's who they're going after. I guess you can make an argument to say that if it's if PRS with the Silver Sky SE, that's like their budget version of the Silver Sky, which is the Indonesian made or Korean made one. I forget where it's made, but it's it's maybe 9 900 high 900s. Um, >> and they're are good guitars, too.

[00:29:41]>> Yeah.

[00:29:41]>> And they're good guitars. They are. Um, but it is interesting that that it seems like the lion share of companies that they're kind of going after are are making more boutique sort of uh instruments. The other irony of this is that my understanding of Leo Fender's interpretation of the Stratacaster is that it was supposed to sort of be this hot rodable instrument. Like the intention of all of the pieces sort of being made independently and it would bolt together. It was like you could customize it and it was capable of doing all of these things that the enduser would then go on and modify that Fender never offered as a as a sort of a stock component. And so this opened the door to a lot of companies making replacement parts and then ultimately maybe even opening up shop in making guitars that already included things that the Stratacastaster on its own never came with. you know, as far as certain types of bridges, you know, that that would that the strings would go through that would maybe be more stable than what Fender would do for, you know, various applications or different sorts of tuning machines or different sorts of magnetic pickups and and all these different sorts of of of things. So I in some ways the Stratacastaster's intention was that it was sort of this blank slate for the enduser to then improvise how they envisioned it being best suited for their playing style. And this opened up the door for companies that would make the guitar stock with those things already implemented. You know, and this this is why there was a Shear and a Valley Arts and a a SUR or a Tom Anderson, you know, these a lot of these companies were very early on in doing this since the late 70s or early 80s. Uh and had been doing it, you know, since then as their own companies.

[00:31:36]>> Well, >> Brian, Brian O, do you have any questions? We want to make sure you get in here.

[00:31:40]>> No, you're good. I've I just been soaking up. I've actually I've had a couple that I was thinking of and I was looking through. people were saying them in the um in the comments too which is really cool is like you you take like PRS Ibanz Anderson like all these companies that have been doing this for so long and I feel like when they try to I don't know there's a part of me that feel that feels like if they try to go up against all of these guys it it would be a t it would be a tougher battle because they've been doing it for so long and they have so much track record. But like the funny thing about the music community and it's something I've learned is like sometimes when is like when something like this happens, you know, people will go, you know, they'll start buying from these other companies.

[00:32:26]They'll start it's like it's when someone says like, "Oh, that's, you know, suicide for for to be doing this or whatever because I, as we just talked about, I don't have $5,000 to go buy a guitar. I've had plenty of opportunities to buy a $5,000 guitar and I play it and I'm like, you know what? I like that 2,000. I like that $1,200 guitar better and it plays amazing or whatever. And I've I've stuck with that. And there's plenty of of companies I know that make amazing guitars. One of them being Elliot guitars. They make a lot of really great, beautiful guitars. They are $5,000 guitars, but they do the S-shaped body and everything. So, it's interesting. And it's not even really a question, but it's it's interesting to see a lot of people are kind of saying like this makes me not want to buy from them and buy from these other companies that they're trying to take out, which, you know, you had to expect. But, you know, seeing people saying, you know, the Fender law, the Fender lawyers aren't stupid. They, you know, they have something up their sleeve. It's kind of like Elon Musk buying Twitter, like that kind of thing. So, I I don't know. I I I don't know what like what that endg game could be, but there's I I still don't feel like there's like I don't know.

[00:33:40]I immediately Yeah. I don't know.

[00:33:42]>> Do you think they considered this, Brian? Do you think that they considered the backlash? cuz like I saw that they released, you know, like a really cool video on like the history of the precision bass and they had all these stakeholders that were users of precision bases through history like Leland Scolar, like a really famous session musician and uh Freddy Washington and them sort of talking about their story of how they first got their precision bass and a beautifully shot video, right? almost like a documentary >> and the comments on it, every single one of them like, you know, f you Fender, you know, like it was like it it just completely derailed what would otherwise have been a really really well-received video because it wasn't promoting like a new product or buying anything. It was almost like a historical documentation of sort of all like these I don't know 10 players that were really instrumental uh in in popular music that used this instrument. Um, and so I I don't know.

[00:34:40]Do you like I guess this goes to all of us. Like do you think that they had any intention that like that I mean they had to know that this that there was going to be backlash, right? Like I can't imagine that they said >> and everybody is going to love this idea, you know? Like I I can't believe that they wouldn't have foreseen that this would have just been an absolute, you know, just like albatross.

[00:35:03]>> Listen, if they didn't foresee it, then they're I mean then they are stupid. I I don't think they're stupid. I mean, because you have kind of the the Gibson Heritage Guitars uh case as somewhat of a leading example in the 2000s and the PRSQ guitar became more popular after the litigation. Like they had they had to have known that >> something I mean that they were going to have some backlash. Maybe they thought they could weather it and would ultimately, you know, no PR is bad PR or all, you know, any bad PR is is good PR because they're getting searched for and people are watching their video who might not otherwise watch it, you know, and in five years when everyone forgets about this, they're still going to be the the most, you know, name recognition um brand out there. Who who knows? But I it it doesn't seem like there was a lot of upside in this. Um >> yeah, I My question would be who's who is Fender specific market, right? Because like we said, you have the the the real question is of those commenting, right? Like how many of those people were actually Fender customers that are now not, right?

[00:36:13]>> You have folks who are buying, you know, sub,000 guitars, uh, you know, started.

[00:36:18]you have a good amount of folks that are buying like mid-level, let's call it, you know, in between one to 2,000 the mid-level. But honestly, of the musicians I know, if you're going to spend between a,000 and $2,000, you're probably going to go not pick a guitar off the wall at Guitar Center, you're probably going to go to a different shop to build, right? So, while they do have that negative feedback, they they might not be losing that much money. And then there's the $5,000 guitars that are bought by dentists, right? And I don't know that the dentists care all of that much about they probably understand Fender's marketing strategy.

[00:36:56]>> No disrespect to the dentists. Yeah.

[00:36:58]>> No. Yeah. Well, >> dentists need guitars, too.

[00:37:01]>> Accountants are the ones. All of my friends are accountants. They went They make more money than me and they went to four years of school and they take like half a year off. Everybody should be an accountant.

[00:37:10]>> Noted.

[00:37:12]Very nice.

[00:37:14]Yeah. No, I >> No, but I >> I was just going to say it's it's funny cuz like listen like, you know, this going to sound so stupid, but like you know, we're all humans.

[00:37:26]>> Humans are petty about things. I am petty about the stupidest stuff. Like someone just parked in that spot I wanted and I'm going to drive past them and stare. I'm going to give them the stair, you know, the stair that's going to do absolutely nothing, Brian. Now they don't have tires.

[00:37:39]>> They have no tires. Cinder blocks.

[00:37:41]That's why I carry 50 lbs of cinder blocks in my car. No, but it's just like it's it's one of these things that like say gets settled. Say Fender says I'm so >> attorney client privilege >> on a live stream.

[00:37:53]>> Say say send say Fender apologizes. Say they're so sorry. Oh my gosh, we you know we we messed up. We we done messed up. Aon like that was a a skit that I always remember. But it's one of those things that like regardless if if they apologize I think from this moment on people will be petty regardless. I think there is like that it's like the thing like it's like something happened you know you boycott or whatever the one thing because something happened 20 years ago and you're like ah I'm never going to eat that again or I'm never going to buy that or going to I'm never going to whatever you know. So I definitely I think it's I don't know. I I don't know. They definitely didn't.

[00:38:34]>> You're never going back to Olive Garden again.

[00:38:36]>> Oh, no. I will. No, I will.

[00:38:39]But I don't know. I think it's interesting.

[00:38:42]>> I'm also a petty Betty. Uh, whenever a lawyer is rude to me, I like look them up and I see if they see if they even pass the bar on the first try. Um, that's amazing.

[00:38:54]That's amazing.

[00:38:55]>> That comes up in the deposition. Just for the record, how many times did you take the bar?

[00:38:58]>> Oh, yeah. I just like to know.

[00:39:02]Oh my god.

[00:39:03]>> Every single warrior does that. Every single >> every single Yeah, it's my version of like, you know, Instagram stalking. Um, my parents one time when they were very newly married went to go try to buy a washer and dryer at Sears and Sears denied them because they didn't have enough credit. Basically, they were too young. And for my entire childhood growing up, we were like anti like we don't we don't shop at Sears. And this came out very embarrassingly like I was in like high school and my friend's mom took me to the mall and she's like, "Let's go in here and look for something." And I was like, "Oh, we don't shop at Sears." And she was like, "Oh, I'm so sorry. You know, you introduce closed down after that. They're not >> right. Your parents had the last laugh on Sears.

[00:39:54]>> That's right. Even with my mom really is probably >> rumor had it they only need one more customer and they would have stayed over.

[00:40:00]>> They would have they if they had just extended credit to my parents who are also accountants, you know, very uh who could afford the $5,000 guitars. Um anyway, the the the brand boycott and memory is is a very real risk. And I think Tinder, if they didn't think that this was going to happen, if they thought people were going to be like, "Oh, thank you for pushing all of the hobbyists and mom and pops and uh, you know, competitors out of the market. We love monopolies. This is great. You know, no better way to go." Then they then they're just very myopic in their thinking because that was never going to be the case.

[00:40:41]>> Yeah. Not to play devil's advocate, though, but Sears is a really great example. At one point, Sears was the biggest company in America and now you couldn't find a Sears product if you go look for it. Fender is the biggest >> name in music probably, right? But their brand, like all brands, if you just kind of stay stagnant, is getting a little bit diluted. like there are other manufacturers making guitars that look like Strats that those people are making the money that Fender, you know, has the design or or created the design for. So, as far as what are they doing, I think they're just trying to keep swimming, you know, so that they don't end up like Sears. You have to sort of continue to be aggressive otherwise and and continue to evolve and figure out new moves otherwise like >> and I get it. It's a it's a body shape, right? Like what are we protecting here?

[00:41:37]What's the protectable element in this?

[00:41:40]Um and and I and I don't think the Stratacastaster while obviously maybe when it first came out was revolutionary and just you know this brand new thing is not at this point in time something that we can protect through these through these way through these methods right um so make a better guitar man.

[00:42:02]>> Right. Yeah. I don't think they can put the genie back in the bottle. I think that that's that's for sure. you know, they they spent a long time, you know, not defending it as you mentioned, and there's some precedent in that. And and I think the reputation thing is consequential. in in Gibson, you know, did a thing, I don't know, maybe a few years ago, um, where they had sort of I don't know that they issued CNDs. Maybe they did, but but they they were basically calling out companies that were, you know, they thought were referential of their body shapes and even went as far as to say that, you know, if you if if an instrument is appearing in in a in a movie or in a commercial or some sort of film that they were going to be coming after people for like unlicensed uses of their instruments and all these things. and and and and it had some pretty serious backlash. Um, and and I think that they're still maybe reputationally suffering a little bit from kind of just being outspoken in and the the perception of punching down, you know, and and I would say that the odd thing to me is that Fender was very much if you had asked I think you know a straw poll of, you know, people walking the street that knew anything about musical instrument companies or you went to a better context might be a NM show and you said which big company has sort of do done the best job at sort of stewarding um the brand, you know, in the last 20 years. I think most people would say Fender is is probably the best reputationally and they seem to do a lot with artists. They seem to do a lot of enrichment. They seem to do things like what I mentioned this this video where they kind of document historical players that used the precision bass. Gibson doesn't really do that. Very few companies do that sort of thing where they're they're they're trying to also sort of document their history and and and do a lot of artist partnerships with maybe lesserk known players that are not just like the most elite players creating signature models for kind of some of these players that are more in the comeup which a lot of other companies wouldn't take risks on. Fender was the only company really doing that.

[00:44:13]It's surprising to me though that that a company that would have that same value, you know, th those values around their brand would also be doing this thing.

[00:44:22]And I think a lot of people felt that betrayal uh whether they were, you know, future Fender customers or current ones or not customers at all.

[00:44:33]I think it it was surprising to me. It was surprising to me as somebody that owns a lot of vintage and and contemporary Fender guitars, that that was sort of >> yeah, >> a direction that sort of their ideal customer, especially in that $2,000 plus instrument range. Um, >> but any in any case, um, Grant, do you have a question here? Because I have a couple more that I wanted to kind of go over with Lauren that I think might be >> I do. Yeah, I actually I do have a question and it's uh it's going to be a doozy, but before we get there, why don't we stop for a very brief >> ad break and then I'm going to do my best to wow all of you.

[00:45:14]>> Okay, question.

[00:45:17]>> Awesome.

[00:45:19]>> We will get right back to the episode, but before we do, I want to tell you about one of the sponsors that makes this podcast possible every single week.

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[00:45:45]Whether it's boutique guitars, amps, pedals, or more mainstream brands, they have it all there and they have the service and staff to make it happen. So, head over to our friends over at the Guitar Sanctuary, guitar sanctuary.com.

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[00:47:43]Tell them the chairman sent you.

[00:47:48]Okay. So, I uh regret building my question up so much. Um, but I'm going to ask it anyways. This is to do with partly to do with one of the uh comments in the chat >> uh from our guitar78.

[00:48:03]>> So, again, thinking about these guitar players or sorry, guitar companies that are much smaller, can't afford huge legal bills. Let's say this does proceed in the United States somehow.

[00:48:14]Is there an option for a bunch of mom and pop shops, mid-level guitar, you know, manufacturers that are involved in this to do some sort of I don't even know if this is the right terminology, class action where they could all come together as a group and try and defend this together. Is that a path that could happen or is that not applicable here and they're really on their own no matter what?

[00:48:40]Um there is a p you know class action typically is in the reverse where it's a bunch of people band together uh as plaintiffs to go sue someone you know hey your building caused me cancer or whatever. Um but you know on the defense side you see it a lot in um patent infringement cases uh where someone's gone and sue you know there's these things called patent trolls out there and they'll go buy a patent that covers some sort of mid-stream process like say like a Xerox scanner. They'll they'll buy a patent that covers one part of that entire process that and then go send a cease and desist or a lawsuit to anyone who's ever scanned anything on a Xerox printer, which can be hundreds of defendants. Sounds like good, >> right? They're they're delightful. Um and so, and when that happens, all of these mom and pops, you know, I had a client who was basically like a like a tire shop, right? and they used some sort of um inventory technology uh and got lumped into this like 200 person uh lawsuit by one of these uh they call them nonpracticing entities, but one of these patent trolls who' bought some sort of mid-stream patent. Uh anyway, they all banded together and they really But you do need kind of one well-healed defendant who can hire >> PRS.

[00:50:02]>> Yeah. Yeah. like a PRS um who can hire the Fox Rothschilds of the world and they can kind of lead the way and everyone else can kind of water ski behind them and be like me too, right?

[00:50:16]Um and there's ways to to cost share.

[00:50:19]We'll split this, we'll split that. Um and there there's and absolutely and I think there's strength in numbers as well. Uh, but I think practically speaking, it can be difficult to kind of mobilize and organize that until the lawsuits are filed and then you start seeing people show up on dockets and at the courthouse. We don't know who all has gotten the cease and desists, right?

[00:50:42]Um, but I I think certainly with the Fox Rothschild letter coming out, there's going to be more people giving him a call or, you know, and getting organized if they need to.

[00:50:53]>> Yeah.

[00:50:54]>> Do the law firms usually help? like if there's if there's a bunch of people that sort of reach out, would they >> generally help organize that or would that be sort of dependent upon the companies sort of interfacing with each other?

[00:51:07]>> Yeah. Um, I would say it's a mixture of both. I mean, the law firms who do this kind of stuff regularly probably have here's my buddy, here's, you know, here's this firm, here's this person. I might be conflicted out because I'm representing someone. Um, you know, but I know this guy, right? Like I can if someone comes to me and and I can't handle it, I could send him to Brian, right? Um, so there's a network there.

[00:51:34]The companies also have their own network. Um, I think in a case like this, one thing you might have to be kind of concerned about with having the same lawyer representing a bunch of them is that they may have different interests and different um levels of risk, right? So, depending on how similar it is that their body style, you know, is to the Fender. Uh, and so you you don't want to get in a position where you're representing a bunch of companies with a bunch of different guitar body shapes and one of them has to start turning on the other and be like, "We're not as bad as these." And then you're all represented by the same guy. You have to be able to keep a unitary message. Um, so yeah, firms refer each other these things all the time if they can develop a network and especially the large firms have that.

[00:52:23]>> Yeah. So, so it sounds like though there there may be some value in the brands at least teaming up, not necessarily with like the the same attorney, but sort of teaming up in terms of we're a united front. We're all sort of fighting the same uh battle with Fender, but we maybe are represented by different firms. Is that is that is that kind of the right characterization? And there's things called uh joint defense agreements which allows defendants to align um you know share costs without breaking attorney client privilege and things like there's there's a lot of ways to leverage that you know strengthen numbers um strategically if you need to >> also helpful to think about practically you know what are the next steps in in the legal process. So, I I don't know off the top of my head, like I said, Lauren knows copyright way better than I do. I don't know if Fender has the copyright to the Stratacastaster uh body yet, that I would imagine that they would have to apply for that. Uh that would be sort of the first step and then there would be a a period to dispute it. But Lauren, quick nerdy lawyer question. Do you have to have your copyright registered in order to bring a lawsuit? I know in trademark you you can do it but then you have to like get it registered by the time >> yes the short answer is yes. So yeah, without nerding out, so the a trademark is something that protects um is a source identifier. So slogans, logos, names of businesses, clone, centaur, things like that. A copyright is going to protect anything that you can reduce to a tangible medium. a photograph, a drawing, um you know, house building plans, uh you know, anything that's like reduced to a tangible medium can be applied for for copyright protection.

[00:54:23]And the answer to your question is yes, copyrights attach at the moment of quote unquote creation. the whenever you take a a picture on your on your cell phone like you're the you are the holder of 10,000 copyrights depending on how many children pictures of your children you have but um until you register them and that means filling out an application depositing a copy with the Library of Congress uh and getting a registration certificate you can't sue for infringement it's an unless and until you register it and You can't sue for infringement unless you've got that registration. It's a prerequisite and you can't go backwards for damages. So, if you were to file your copyright today for something you created 20 years ago, um then you would only be able to go after people for infringement forward-looking. You don't get to go all the way back in the past. And I think the the the reason that Fender went after trademarks as opposed to copyrights in the United States is because copyrights expire. And uh there's it's the life of the author plus I think 70 years. This has been around for a long time. They never went and got it originally. There's a whole bunch of potential authors to the design of this guitar. And there's also some form versus function uh issues that are, you know, beyond the scope of this podcast. But trademarks, you know, they were basically saying this is a source identifier. People see this this guitar and they think, "Ah, Fender guitars, right?" Um, and the trademark office was like, "No, it's too generic."

[00:55:59]Um, >> what what what are your guys' thoughts on some of the demands that were in the cease and desist around the€ 250,000 euro sort of like penalties and the the sort of like u destruction of any instruments that are recalled from overseas and then providing some sort of evidence that they what what is your sort of thoughts on on that even you know for for the companies where maybe it does apply. Um, what is your sort of interpretation of that legally?

[00:56:36]>> I mean, I think with any type of damages, you put in the scariest stuff in your letter uh on the hopes that someone goes, "Oh god, you know, I don't want to get fined 250,000 or destroy all my inventory." So, they comply. Those things are usually never litigated all the way through and enforced at the maximum extent. they are just potential, you know, avenues of recovery. Um, and and I guess maybe the strategy was we'll send these letters out to the mom and pops and they'll be so scared of this damages number that they they'll comply. Um and it sounds like Fender in their response that they published yesterday has gotten some respon. Now whether or not that's true or how much people are playing ball with these letters that they if they're US companies don't really have to comply with you know it remains to be seen.

[00:57:30]That could all just be like a you know backing off the PR strategy kind of thing. But um yeah I don't know. I those are just trumped up numbers intended to scare people as far as I'm concerned. If if you're advising a US company, say like an LSL, you know, what would you advise them not to do, you know, as far as like they've received this letter. I know that we had sort of spoken in in advance about, you know, some companies may feel pressure to just sort of like >> make it go away.

[00:58:03]Would what would the consequences be of signing something like this or agreeing to those terms as it was sent forward in the cease and desist? Yeah, I mean I think everything's an invitation to negotiate or discuss. So if a client got a letter like that, first thing I would do would be like don't ignore it. Let's do an analysis as to whether the claims have merit and then formulate a response. And the response can be go jump in a lake. You don't have a claim.

[00:58:32]You know, I I I get trademark infringement letters or, you know, I do a lot of employment law where, you know, people like, oh, you're breaching your non-compete. I get these letters all the time and I investigate. I look into it and then I respond and I a lot of times the response is um given that they've already gotten a little bit of backlash maybe they're emboldened by some of this you know compliance that they've gotten from the smaller companies. Um I think there's going to be >> it looks like we're back. We had a quick quick glitch. I'm just wondering if you could rehash. Um sure. So, so the question that I asked just restating for the for the live audience is what do you think is the most likely outcomes? Um, given that you were able to fairly uh reliably predict the outcomes of the Clone Centur lawsuit, you said that you think that there's a few different possible outcomes and rehashing them.

[00:59:23]I'm sorry to make you start again.

[00:59:24]That's okay. Yeah. Sorry about that, guys. I don't know what happened.

[00:59:27]>> That's okay.

[00:59:28]>> You know, I think there's going to be a couple of things that are going to happen. I think some people are going to comply or at least, you know, um, hey, look, I'm doing this as an homage to Fender, right? I I never meant to to upset anyone. I'm sorry. I'll back off.

[00:59:43]Uh, and I I I think there's going to be and there already has been, you know, some brand backlash uh to to Fender and I and if that continues, I would be surprised if they continue to press in the United States for a couple of reasons. one, you know, our PR news cycle, social media machine is is really advanced and like, you know, you if you get on the wrong side of somebody, um that backlash can be real and have real economic consequences for your for your shareholders, right? Um and and then also there's just not a US hook here in terms of copyright law, trademark law.

[01:00:26]Uh there's no enforcement mechanism in the United States. So continuing to press seems like it really doesn't have a whole lot of upside because you're you're not going to get anything out of it other than continuing to look like a big bully uh when you have no need to.

[01:00:43]But if you know if they keep going, I think that this really could be contested. They've already got the guy who beat them once uh on the trademark side in their corn, you know, fighting against these seasoned desists. Um, and I think that if these parties or a coalition of them get together uh, and start challenging these things, particularly in the EU, it might fall apart there, too. And I would be really concerned about an embarrassing brand moment for offenders. I I I think that I think if your my prediction market is nothing's going to happen in the United States and they will get whoever it is they're targeting in the EU to do what they want and it'll probably die that way would be my guess.

[01:01:34]>> Brian, >> yeah, I kind of think the same thing.

[01:01:38]Uh, I I this is wild, like a wild accusation, but I think I I think this has so much to do with the silver sky just because it's it John Mayer moving from Fender to PRS is like the equivalent of I don't know I know you know it's like the equivalent of LeBron moving from Nike to Adidas, right? Like it's a giant move. I know personally 20 people who bought Stratacasters because, you know, that are my age, they bought Stratacasters because they were big fans of John Mayer. I think going after the bigger companies that actually do sell in Europe is probably the main goal here because they want to limit things like Silver Sky or they want to limit bigger dealers who sell in Europe. Like Lauren said, she I mean, she's knows way more about copyright than I do. So if there's no US hook, then some of the manufacturers who are just, you know, doing it locally probably need to just kind of sit tight and let the the big guys, you know, figure it out. Let PRS go do the the fighting for them and hope to swim in their wake a little bit. And then kind of like what Lauren said, some folks will just say, "Hey, I can't afford an attorney. Can I just give you X percentage of the guitars that I sell because I don't want to deal with hiring attorney? I don't want to be deposed. I don't want to go through the litigation even though, you know, it isn't the strongest legal claim. I think people just get scared of the law, rightfully so, and we'll just sort of comply. But, um, we'll see as it goes farther down the line. But I think honestly that this is a a this is aimed at some of the bigger sellers. I don't think Fender really cares that, you know, people are building parts casters and selling, you know, a few million dollars worth of of product every year.

[01:03:41]>> Yeah. Well, the interesting thing though is like with Nash, I think that they're buying licensed Fender parts, you know, so like the Fender is receiving the license fee in in the fact that they're buying licensed bodies and necks and then basically just assembling them. Um, so to me, it just seems like yeah, really strange. But in any case, Lauren and Brian, I sincerely appreciate you taking the time. I I appreciate sort of your breakdown of this, your theorization of what the possible outcomes may be and and I hope that maybe we can have you back again in the future should there be any, you know, significant developments that are maybe worth further commentary. I hope that we can have you join us again.

[01:04:26]>> Absolutely.

[01:04:27]>> Well, if Grant gets a cease and assist, that's one way to to get Lauren's opinion instead of hiring him. Bring us on the Got you on speed dial, Lauren.

[01:04:35]Yeah, that's right. That's right.

[01:04:37]>> If if if anybody is curious about uh employing your services or reaching out, where is the be best place that they might do that? Uh Lauren and Brian.

[01:04:47]>> Sure. Uh so I work for a firm called Kokonos. Uh I'll I'll spell it co i n o.

[01:04:55]coconlaw.com in I'm I think the first person alphabetically on our website which is always which is one of the reasons I took my husband's last name because I got to move on up. I was an S before. Um so you can find me there. My email my direct line but my email is L. Aldridge A L D as in David recoonoslaw.com.

[01:05:19]You're welcome to shoot me an email. Uh my direct line's on the website. Give me a call. Uh, I smoke signals, texts, uh, you can find me on all your socials, you know, wherever you need me. Um, that's how you can get a hold of me. If you can't figure out how to get a hold of me, let Mason know. Uh, because I'm not doing my job correctly.

[01:05:40]>> Uh, I'm actually uh starting a new job on Monday. Um, so I don't have as an accountant.

[01:05:47]>> As an accountant, yeah, got my certificate at night. Uh, no. So, I don't have an email set up for the the new firm. So, if you want to get a hold of me, uh I do you I'm about to start doing personal injury, a little bit of employment work, maybe, you know, a niche guitar litigation here every once in a while. But, uh you can just send it to my personal email, which is uh [email protected].

[01:06:09]That was my music email, and I'll answer some legal stuff for you if you want.

[01:06:14]>> Perfect. Perfect. Well, thank you both for being here, and again, we'll hope to have you on again soon.

[01:06:20]Yeah, absolutely.

[01:06:22]>> Yeah. Bye guys.

[01:06:23]>> Thanks guys. Bye everyone.