No mate, it's not a fender, it's a partscaster

NCo

Genuine question for the legal folk, is a stratocaster type guitar with a copyright headstock and a custom decal (non fender) considred counterfeit, or does it simply breach trademark laws?

elstoof

I believe that Fender headstock shapes produced under license can only be sold with no decal of any sort, thats how the agreement between Fender, Warmoth et al was settled at least. The same would be true for anyone selling a used neck with their own decal, no bueno

stickyfiddle

Re watches: the valuable, useful part of the watch is the main head (case, movement, back, crystal, dial and hands), not the strap. 

In the case of leather straps those are effectively consumable parts anyway, like frets on a guitar. 

In the case of metal bracelets, most can’t de transferred between watch brands in the way maple necks can, so it’s largely a non-issue. 

If someone were to sell a submariner with an aftermarket strap/bracelet it would be described as such. 

But even if you did for some reason put eg a Rolex bracelet on an Omega watch the dial would still show the Omega logo so it wouldn’t be misleading, just weird and confusing 

timmypix

prowla said:

OilCityPickups said:

digitalscream said:

guitars4you said:

It was a while ago now, but I recall a long chat with a senior member of Fender EU about this topic and what is the basis of a fake, and what is legal or illegal

But...and this is really important...Fender do not write the laws in this country. It doesn't matter what Fender are willing to tolerate in terms of their trademark. Under the definition of "counterfeit" in UK law, this guitar is a counterfeit.

Intent doesn't matter, descriptions don't matter, trademark owners' opinions don't matter - it's only the physical item in question that matters, and in the case of a guitar...the logo on the headstock is the primary source of authenticity.

prowla said:

I'm normally pretty hot on the matter of selling of fake kit pretending it's real, but I don't think the genuine Fender logo on the genuine Fender neck makes the sale of that partscaster illegal and nor should it be removed.

It really, really does. Every legal expert I've sought advice from (both officially and unofficially) says the same. It's not even a grey area or slightly ambiguous. The neck is legal to sell, the body is legal to sell, but only as parts. Put them together as a guitar, and they form a counterfeit item.

I think the reason there are multiple pages of folks arguing the toss here is that people get confused between the law, and what they wish the law was. They look at what they personally consider morally correct, and not what the law actually says. It's upsetting that someone might consider your treasured partscaster a fake ... and so they try to argue around an unambiguous point with lots of 'what if's'.
The bottom line is that In the eyes of the law in the UK a partscaster with Fender on the headstock is a fake and cannot be sold without the logo removed. End of story. 
As to whether that's 'right' morally ... that's a whole other ballgame, it's a bit harsh I'll grant you, but to overturn the current state of affairs would require a change to the law - a law that works perfectly well for pretty much all other consumer products - so I can't see it happening. 

I'm not sure if it has been posted, but can you give a link to the law which states your end of story assertion?

I've posted it and you replied to me. I did mention another scenario it covers that I found interesting as a point of discussion, but that wasn't the reason I posted it. Section 92 of the Trademarks Act 1994.

https://www.legislation.gov.uk/ukpga/1994/26/section/92

prowla

Counterfeits

So the assertion has been made that the item is a counterfeit; as far as I can see, that is not the case according to the written UK laws:

• CPS Forgery and Counterfeiting (https://www.cps.gov.uk/legal-guidance/forgery-and-counterfeiting)
• Forgery and Counterfeiting Act 1981 (https://www.legislation.gov.uk/ukpga/1981/45).
  

The law states (where "instrument" is general term for an item):

A person is guilty of forgery if he makes a false instrument, with the intention that he or another shall use it to induce somebody to accept it as genuine, and by reason of so accepting it to do or not to do some act to his own or any other person’s prejudice.

There's a lot more to read in there, but the forgery and counterfeiting law is clearly concerned with the intent to deceive.

There have been some statements that the guitar in question here is a counterfeit, but that simply does not equate with the written law.

Bolting parts together, branded or not, does not make something a counterfeit per-se, nor does selling it; selling it with the intent to deceive, as if it was in its entirety a product of a given brand, is counterfeiting.

So, who can point to the UK law which says such instruments, bearing factory-original branding are counterfeits?

If there is no such law to be found, then those claims made of illegality and counterfeits are simply opinion and not authoritative fact.

(Got to start work now, but will come back to Trademark law later.)

OilCityPickups

timmypix said:

prowla said:

OilCityPickups said:

digitalscream said:

guitars4you said:

It was a while ago now, but I recall a long chat with a senior member of Fender EU about this topic and what is the basis of a fake, and what is legal or illegal

But...and this is really important...Fender do not write the laws in this country. It doesn't matter what Fender are willing to tolerate in terms of their trademark. Under the definition of "counterfeit" in UK law, this guitar is a counterfeit.

Intent doesn't matter, descriptions don't matter, trademark owners' opinions don't matter - it's only the physical item in question that matters, and in the case of a guitar...the logo on the headstock is the primary source of authenticity.

prowla said:

I'm normally pretty hot on the matter of selling of fake kit pretending it's real, but I don't think the genuine Fender logo on the genuine Fender neck makes the sale of that partscaster illegal and nor should it be removed.

It really, really does. Every legal expert I've sought advice from (both officially and unofficially) says the same. It's not even a grey area or slightly ambiguous. The neck is legal to sell, the body is legal to sell, but only as parts. Put them together as a guitar, and they form a counterfeit item.

I think the reason there are multiple pages of folks arguing the toss here is that people get confused between the law, and what they wish the law was. They look at what they personally consider morally correct, and not what the law actually says. It's upsetting that someone might consider your treasured partscaster a fake ... and so they try to argue around an unambiguous point with lots of 'what if's'.
The bottom line is that In the eyes of the law in the UK a partscaster with Fender on the headstock is a fake and cannot be sold without the logo removed. End of story. 
As to whether that's 'right' morally ... that's a whole other ballgame, it's a bit harsh I'll grant you, but to overturn the current state of affairs would require a change to the law - a law that works perfectly well for pretty much all other consumer products - so I can't see it happening. 

I'm not sure if it has been posted, but can you give a link to the law which states your end of story assertion?

I've posted it and you replied to me. I did mention another scenario it covers that I found interesting as a point of discussion, but that wasn't the reason I posted it. Section 92 of the Trademarks Act 1994.

https://www.legislation.gov.uk/ukpga/1994/26/section/92

As  @timmypix posted: this

I think the part folks have difficulty comprehending is that by putting a neck that quite legitimately has a trademarked logo on a a non original body is, in the eyes of the law 'applying' that logo, I think folks think that applying a logo just means sticking on a transfer ... it means causing that logo to be 'affixed to' and that can be from bolting on a neck. 

digitalscream

prowla said:

So, who can point to the UK law which says such instruments, bearing factory-original branding are counterfeits?

If there is no such law to be found, then those claims made of illegality and counterfeits are simply opinion and not authoritative fact.

There are no laws specifically relating to guitars, or musical instruments. You've already stated in your own posts that you can't believe guitars or musical instruments are a special niche mentioned in law, and you're quite correct in that, so I'm not entirely sure why you're asking for such a thing now.

Genuine question: are you a lawyer? As noted, every single lawyer I've spoken to has said exactly the same thing, which I've explained ad nauseam in here, and so it'd be quite interesting to hear a legal argument to the contrary.

The definition is spread amongst a number of laws (including the Trade Marks Act 1994 and the Forgery and Counterfeiting Act 1981), and all refer to items which are "likely to mislead". There is no single definition.

dazzajl

Is it time to merge this thread with the flat earth one?

Seziertisch

OilCityPickups said:

timmypix said:

prowla said:

OilCityPickups said:

digitalscream said:

guitars4you said:

It was a while ago now, but I recall a long chat with a senior member of Fender EU about this topic and what is the basis of a fake, and what is legal or illegal

But...and this is really important...Fender do not write the laws in this country. It doesn't matter what Fender are willing to tolerate in terms of their trademark. Under the definition of "counterfeit" in UK law, this guitar is a counterfeit.

Intent doesn't matter, descriptions don't matter, trademark owners' opinions don't matter - it's only the physical item in question that matters, and in the case of a guitar...the logo on the headstock is the primary source of authenticity.

prowla said:

I'm normally pretty hot on the matter of selling of fake kit pretending it's real, but I don't think the genuine Fender logo on the genuine Fender neck makes the sale of that partscaster illegal and nor should it be removed.

It really, really does. Every legal expert I've sought advice from (both officially and unofficially) says the same. It's not even a grey area or slightly ambiguous. The neck is legal to sell, the body is legal to sell, but only as parts. Put them together as a guitar, and they form a counterfeit item.

I think the reason there are multiple pages of folks arguing the toss here is that people get confused between the law, and what they wish the law was. They look at what they personally consider morally correct, and not what the law actually says. It's upsetting that someone might consider your treasured partscaster a fake ... and so they try to argue around an unambiguous point with lots of 'what if's'.
The bottom line is that In the eyes of the law in the UK a partscaster with Fender on the headstock is a fake and cannot be sold without the logo removed. End of story. 
As to whether that's 'right' morally ... that's a whole other ballgame, it's a bit harsh I'll grant you, but to overturn the current state of affairs would require a change to the law - a law that works perfectly well for pretty much all other consumer products - so I can't see it happening. 

I'm not sure if it has been posted, but can you give a link to the law which states your end of story assertion?

I've posted it and you replied to me. I did mention another scenario it covers that I found interesting as a point of discussion, but that wasn't the reason I posted it. Section 92 of the Trademarks Act 1994.

https://www.legislation.gov.uk/ukpga/1994/26/section/92

As  @timmypix posted: this

I think the part folks have difficulty comprehending is that by putting a neck that quite legitimately has a trademarked logo on a a non original body is, in the eyes of the law 'applying' that logo, I think folks think that applying a logo just means sticking on a transfer ... it means causing that logo to be 'affixed to' and that can be from bolting on a neck. 

The argument could be made that the logo on the headstock is only intended to indicate the provenance of the neck and not anything else. 

Otherwise, there would be an issue with selling any guitar with any non-original parts i.e. the logo on the headstock says Fender but the pickups have been swapped to something non-Fender. It seems fairly arbitrary to say that the logo on the headstock of the separate, detachable neck covers the body but none of the other bits on the guitar. 

Regarding the guitar on EBay that started this the neck is original Fender and is branded as such, the body is from SCRelics and is also branded as such. I don’t see the issue. The provenance of the instrument in question can be easily verified and the only risk of someone being defrauded is if they don’t bother to check.

OilCityPickups

digitalscream said:

prowla said:

So, who can point to the UK law which says such instruments, bearing factory-original branding are counterfeits?

If there is no such law to be found, then those claims made of illegality and counterfeits are simply opinion and not authoritative fact.

There are no laws specifically relating to guitars, or musical instruments. You've already stated in your own posts that you can't believe guitars or musical instruments are a special niche mentioned in law, and you're quite correct in that, so I'm not entirely sure why you're asking for such a thing now.

Genuine question: are you a lawyer? As noted, every single lawyer I've spoken to has said exactly the same thing, which I've explained ad nauseam in here, and so it'd be quite interesting to hear a legal argument to the contrary.

The definition is spread amongst a number of laws (including the Trade Marks Act 1994 and the Forgery and Counterfeiting Act 1981), and all refer to items which are "likely to mislead". There is no single definition.

The law has been pointed to ... tt applies to all goods including guitars. Guitars are not a special case as @digitalscream says ... nor have they any form of special exemption from the law even if we'd like them to.

There are certain cars, it's my opinion that are quite safe to drive at 90 on the motorway ... my opinion doesn't matter a chrome plated monkey turd to the copper who'll bust me for speeding. It's my opinion that providing it's all disclosed, there's nowt much wrong with selling a partscaster with the logo on ... but that's only my personal opinion ... the law as stated says it's illegal - and so it is ... my opinion doesn't come into it. 

Johnnyseven

Didn't Fender originally intend their necks to be replaced on their guitars when the frets etc wore out and they sell replacement necks with their logo on for that purpose? So surely replacing a neck on a Fender guitar witha genuine Fender neck is ok as it would be like replacing any other broken/worn out part of the guitar?

Gilly

@Seziertisch ;

The argument could be made that the logo on the headstock is only intended to indicate the provenance of the neck and not anything else. 

Otherwise, there would be an issue with selling any guitar with any non-original parts i.e. the logo on the headstock says Fender but the pickups have been swapped to something non-Fender. It seems fairly arbitrary to say that the logo on the headstock of the separate, detachable neck covers the body but none of the other bits on the guitar. 

Regarding the guitar on EBay that started this the neck is original Fender and is branded as such, the body is from SCRelics and is also branded as such. I don’t see the issue. The provenance of the instrument in question can be easily verified and the only risk of someone being defrauded is if they don’t bother to check.

This has all already been addressed in the thread.

Gilly

guitars4you said:

Gilly said:

Also @guitars4you aren’t you a Fender dealer?  

Not these days - Only sell used and semi retired 

Ah fair enough. I was expecting you to be quite strict about these sort of trademark issues, hence the question.

OilCityPickups

 digitalscream said:

prowla said:

So, who can point to the UK law which says such instruments, bearing factory-original branding are counterfeits?

If there is no such law to be found, then those claims made of illegality and counterfeits are simply opinion and not authoritative fact.

There are no laws specifically relating to guitars, or musical instruments. You've already stated in your own posts that you can't believe guitars or musical instruments are a special niche mentioned in law, and you're quite correct in that, so I'm not entirely sure why you're asking for such a thing now.

Genuine question: are you a lawyer? As noted, every single lawyer I've spoken to has said exactly the same thing, which I've explained ad nauseam in here, and so it'd be quite interesting to hear a legal argument to the contrary.

The definition is spread amongst a number of laws (including the Trade Marks Act 1994 and the Forgery and Counterfeiting Act 1981), and all refer to items which are "likely to mislead". There is no single definition.

People don't want to listen mate ... 

Hey ho ... I'm out of here ...  

digitalscream

Seziertisch said:

The argument could be made that the logo on the headstock is only intended to indicate the provenance of the neck and not anything else. 

That argument falls flat because the law is concerned with whether the average buyer would be misled by the item. So, since the vast majority of people look at the trademark on the headstock to determine the origin of the instrument, any trademark which doesn't accurately denote the origin of the entire instrument (assuming the absence of other similarly-prominent trademarks on the body, for example) is construed to be misleading.

It's more about common knowledge within the market.

There's a grey area in terms of appropriate items - for example, a Fender logo on a Les Paul or SG would raise questions for the majority of buyers, so it may not be considered a counterfeit (although it would probably fall foul of trademark laws).

HAL9000

Whilst I understand what we’re saying here and that the law is the law, it just doesn’t make any sense.

It seems from earlier In this thread that something akin to, say, Clapton’s Blackie is legally a fake. This despite having a genuine Fender neck attached to a genuine Fender body. Sure, I can see it’s non-original - but a fake? As far as I can see it has a factory-supplied part - admittedly a rather large part but no different from, say, replacing the engine in a car which wouldn’t suddenly turn the car into a fake. Are the rules somehow different for different categories of goods?

Edit - I’ve I’ve just seen that this has been answered a few posts up.

Pabcrane

Johnnyseven said:

Didn't Fender originally intend their necks to be replaced on their guitars when the frets etc wore out and they sell replacement necks with their logo on for that purpose? So surely replacing a neck on a Fender guitar witha genuine Fender neck is ok as it would be like replacing any other broken/worn out part of the guitar?

One certainly may buy a genuine Fender replacement neck for their Fender guitar - they just aren't able to sell the resultant instrument (without it being considered a counterfeit).

prowla

OilCityPickups said:

digitalscream said:

prowla said:

So, who can point to the UK law which says such instruments, bearing factory-original branding are counterfeits?

If there is no such law to be found, then those claims made of illegality and counterfeits are simply opinion and not authoritative fact.

There are no laws specifically relating to guitars, or musical instruments. You've already stated in your own posts that you can't believe guitars or musical instruments are a special niche mentioned in law, and you're quite correct in that, so I'm not entirely sure why you're asking for such a thing now.

Genuine question: are you a lawyer? As noted, every single lawyer I've spoken to has said exactly the same thing, which I've explained ad nauseam in here, and so it'd be quite interesting to hear a legal argument to the contrary.

The definition is spread amongst a number of laws (including the Trade Marks Act 1994 and the Forgery and Counterfeiting Act 1981), and all refer to items which are "likely to mislead". There is no single definition.

The law has been pointed to ... tt applies to all goods including guitars. Guitars are not a special case as @digitalscream says ... nor have they any form of special exemption from the law even if we'd like them to.

There are certain cars, it's my opinion that are quite safe to drive at 90 on the motorway ... my opinion doesn't matter a chrome plated monkey turd to the copper who'll bust me for speeding. It's my opinion that providing it's all disclosed, there's nowt much wrong with selling a partscaster with the logo on ... but that's only my personal opinion ... the law as stated says it's illegal - and so it is ... my opinion doesn't come into it. 

Not exactly - it's your interpretation and opinion that the law says the partscaster is illegal.

There is nothing in the Forgery and Counterfeiting law which says an item must not comprise branded parts and I illustrated that for watches, car repairs, and other things.

As to there being no special case for guitars, you make my point; I didn't say guitars would need an exemption to allow partscasters, but rather I said there would need to be a special case to make them illegal.

As far as Trademark law goes, it relates to unauthorised use of a company logo, but Fender will sell you a branded neck without saying it must exclusively go onto a Fender guitar and therefore they are implicitly granting you permission to put it on anything you like; they put their original logo on it and there is nothing whatsoever either in law or in their T&Cs to say what you can fit it to.

Seziertisch

digitalscream said:

Seziertisch said:

The argument could be made that the logo on the headstock is only intended to indicate the provenance of the neck and not anything else. 

That argument falls flat because the law is concerned with whether the average buyer would be misled by the item. So, since the vast majority of people look at the trademark on the headstock to determine the origin of the instrument, any trademark which doesn't accurately denote the origin of the entire instrument (assuming the absence of other similarly-prominent trademarks on the body, for example) is construed to be misleading.

It's more about common knowledge within the market.

There's a grey area in terms of appropriate items - for example, a Fender logo on a Les Paul or SG would raise questions for the majority of buyers, so it may not be considered a counterfeit (although it would probably fall foul of trademark laws).

Does “average buyer” mean “average buyer” or “average buyer of CS Fenders”?

prowla

digitalscream said:

prowla said:

So, who can point to the UK law which says such instruments, bearing factory-original branding are counterfeits?

If there is no such law to be found, then those claims made of illegality and counterfeits are simply opinion and not authoritative fact.

There are no laws specifically relating to guitars, or musical instruments. You've already stated in your own posts that you can't believe guitars or musical instruments are a special niche mentioned in law, and you're quite correct in that, so I'm not entirely sure why you're asking for such a thing now.

Genuine question: are you a lawyer? As noted, every single lawyer I've spoken to has said exactly the same thing, which I've explained ad nauseam in here, and so it'd be quite interesting to hear a legal argument to the contrary.

The definition is spread amongst a number of laws (including the Trade Marks Act 1994 and the Forgery and Counterfeiting Act 1981), and all refer to items which are "likely to mislead". There is no single definition.

Yes, there are no specific laws pertaining to guitars, which is precisely the point; there is nothing in the law to say that assembling things from (branded) parts is illegal and therefore for it to apply to partscaster guitars would need a special case.

As for lawyers, for every one who gives one opinion, there is another who will say the opposite; they are not the arbiters of the law and their trade is to present opinion and argue the point in court.

Taking legal advice is not the same as establishing a fact and repeating it ad-nauseum does not make it a fact.

The Trademark law is there to protect the interests of the Trademark owner and, as has been pointed out, Fender sell branded parts without stipulating onward clauses regarding their use and the permanence of their factoy-applied logos; therefore they are implicitly authorising their use as-is on parts instruments and so there is no infringement of Trademark law.

As pointed out, the Counterfeiting laws are there to cover the intent of deception, which is not so in this case where the part and logo are genuine.

So, it doesn't break Trademark law and it is not a Counterfeit.