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

prowla

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 comprehension is in actually reading the linked section:

(1)A person commits an offence who with a view to gain for himself or another, or with intent to cause loss to another, and without the consent of the proprietor—

(a)applies to goods or their packaging a sign identical to, or likely to be mistaken for, a registered trade mark, or

(b)sells or lets for hire, offers or exposes for sale or hire or distributes goods which bear, or the packaging of which bears, such a sign, or

(c)has in his possession, custody or control in the course of a business any such goods with a view to the doing of anything, by himself or another, which would be an offence under paragraph (b).

(2)A person commits an offence who with a view to gain for himself or another, or with intent to cause loss to another, and without the consent of the proprietor—

(a)applies a sign identical to, or likely to be mistaken for, a registered trade mark to material intended to be used—

(i)for labelling or packaging goods,

(ii)as a business paper in relation to goods, or

(iii)for advertising goods, or

(b)uses in the course of a business material bearing such a sign for labelling or packaging goods, as a business paper in relation to goods, or for advertising goods, or

(c)has in his possession, custody or control in the course of a business any such material with a view to the doing of anything, by himself or another, which would be an offence under paragraph (b).

(3)A person commits an offence who with a view to gain for himself or another, or with intent to cause loss to another, and without the consent of the proprietor—

(a)makes an article specifically designed or adapted for making copies of a sign identical to, or likely to be mistaken for, a registered trade mark, or

(b)has such an article in his possession, custody or control in the course of a business,

knowing or having reason to believe that it has been, or is to be, used to produce goods, or material for labelling or packaging goods, as a business paper in relation to goods, or for advertising goods.

As pointed out, the seller has a genuine Fender part and has the consent of the proprieter (ie. Fender), who do not specify the onward use of their instruments or parts.

Aside from them selling branded parts for unspecified use, the fact that Fender endorsed David Gilmour's partscaster implicitly says that they give the required consent in the above clauses.

digitalscream

prowla said:

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

But more to the point, making up your own interpretation of the law contradicting all available legal advice, without any legal experience, is even less likely to be a fact.

prowla

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

Thanks, but that does not validate the "End of story" assertion and indeed does the opposite on the basis of failing the "without the consent of the proprietor" clause.

Philly_Q

I wonder if we'll manage to get to 10 pages by the end of the day, without anyone adding anything new?

dazzajl

Philly_Q said:

I wonder if we'll manage to get to 10 pages by the end of the day, without anyone adding anything new?

We’ve got this far, why not set the sights high

Offset

I must confess I had no problem with the advert as the seller was completely upfront about what s/he was selling.  There was no attempt to deceive so I can't see anything to get especially aeriated about.

I'm struggling to believe it's illegal, but then again I'm not a lawyer.

Offset

Philly_Q said:

I wonder if we'll manage to get to 10 pages by the end of the day, without anyone adding anything new?

It's yet another Jo Jo Gunne thread.

HAL9000

Pabcrane said:

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).

‘The law is an ass’

  - Charles Dickens (Oliver Twist)

Kurtis

Personally (for what it's worth) I feel that if it's all fender parts you should be able to call it a fender.
Judge each instrument for what it is, not what it was. 
But lying about what it is is obviously naughty naughty. 
Keep receipts! 

It's probably been mentioned already but I don't really get how some parts are replaceable and others aren't. A neck should wear out quicker than pickups. 

HAL9000

…So what we seem to be saying here is that if I bought a genuine Fender neck to replace the worn-out / damaged one on my genuine Fender Strat then I could never (legally) sell that guitar on? Despite it being the law, that really doesn’t make any sense.

But I could put the worn-out / damaged neck back on the instrument, then sell it with the replacement neck in the same package as a spare?

SPECTRUM001

Offset said:

I must confess I had no problem with the advert as the seller was completely upfront about what s/he was selling.  There was no attempt to deceive so I can't see anything to get especially aeriated about.

I'm struggling to believe it's illegal, but then again I'm not a lawyer.

Me neither - as was once told by a lawyer colleague that a substantial part of the ‘Law’ is based on intent.

guitars4you

Interesting thought - Many would look at the above and say it is a Fender - Indeed Christie's the well known auction house happily listed it for sale and sold it for a shade under $2 million - However you could say they were clever or vague with the listing - see below and I quote : - 

FENDER ELECTRIC INSTRUMENT COMPANY, FULLERTON, CIRCA 1954 AND LATER
A SOLID-BODY ELECTRIC GUITAR, STRATOCASTER, BEARING THE SERIAL NUMBER 0001
Stamped at the neckplate 0001, the later neck with headstock bearing the decal logo Fender STRATOCASTER / WITH SYNCHRONIZED TREMOLO / ORIGINAL / Contour / Body, the body in a finish of a white color, mounted with an anodized gold finish pickguard and gold-plated hardware, with a later hardshell case bearing a label inscribed

The above 'heading' implies quite a bit, but IMO it never states it is a Fender Strat or indeed a 1954 Fender Strat in the manner we would expect to see on any such listing - Key words 1954, Stratocaster and indeed Fender are utilised throughout, but never in the format we would all use to list for sale a genuine/original version - If it was our guitar then I dare say we'd all list it for sale along the line 'Fender 1954 Strat for sale' etc - Bottom line is that I believe questions would often be raised if any individual or company listed a guitar for sale in the above manner as per Christie's 

Why is that - is it because of the story that Seymour Duncan has always told about this guitar

I quote - According to Seymour Duncan, there were two guitars with the #0001 serial number and David’s guitar is a “frankenstein” consisting of several different parts. Apparently, in 1976 a guy named Richard Green wanted Duncan to repair his 1957 Strat. Duncan shipped the body to Charvel but it was too worn and full of scratches and it was replaced by a random, similar body and sprayed see-through root beer. The neck went to repairman Phil Kubicki, who refinished it and Duncan fitted the neck to the “new” body and returned it to Richard Green. The guitar had a #0001 serial number on the neckplate. Later, Seymour got the original body at Charvel’s, slapped on a random 1957 neck that he’d bought from Phil Kubicki, wounded new 1960’s replica pickups and sold it to Phil Taylor. This guitar also had a #0001 serial number on the neckplate.

So to sum it up, according to Seymour Duncan, David’s #0001 Stratocaster has a 1957 light mint green ash body and a 1957 neck, from to two separate guitars, and the pickups are custom ‘60s Duncans. Seymour also insists that he actually didn’t sell it to Taylor but to Alan Rogan (Pete Towsend’s long time guitar tech), who then sold it to Phil. The neck could have been a 1954 but Seymour remembers that it had a ’57 neck with cigarette burns just above the nut, which David’s indeed has.

So is it a fake ? - To be fair to Christie's they do tend to be 'vague' on many other listings - Certainly compared to how the rest of the industry would list such products for sale - Be it within their own media outlets and to maximise search engine optimisation etc - Obviously no doubt about the history and association of this guitar during the time that DG owned it and this is listed in fine detail within the auction listing - But that is not the issue/question that I'm raising 

Probably one of the most famous Strat's on planet earth - Considering Dave and Fender agreed to a 'replica' of the famous Black Strat, interesting that they never agreed to a replica of this 'blonde' Strat - Of course we are only guessing as to why that maybe the case - But the words of Seymour Duncan certainly carries weight - Genuine or dubious ? - No one is certain and if the experts can't agree on this, then the lawyers would not be able to sign it off one way or the other - As at the end of the day a lawyer would require expert analysis and I dare say few, if any, legal lawyer, would personally possess the required info

Just a thought - Obviously no conclusion - But lots of doubt and questions - But nevertheless it was sold legally

guitars4you

SPECTRUM001 said:

Offset said:

I must confess I had no problem with the advert as the seller was completely upfront about what s/he was selling.  There was no attempt to deceive so I can't see anything to get especially aeriated about.

I'm struggling to believe it's illegal, but then again I'm not a lawyer.

Me neither - as was once told by a lawyer colleague that a substantial part of the ‘Law’ is based on intent.

My dad's brother in law was a senior partner in a well known local firm of solicitors - He always told me if 1 is black and 100 is white, then in-between are 99 shades of grey and those 99 shades of grey is when we go to work

prowla

digitalscream said:

prowla said:

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

But more to the point, making up your own interpretation of the law contradicting all available legal advice, without any legal experience, is even less likely to be a fact.

Reading what is written certainly takes a skill.

With regards to legal advice, if it was irrefutable then there wouldn't be a lucrative legal profession earning loadsamoney fighting things in court.

The answers a lawyer will give depends upon the questions they are asked (and also whether they are paid).

As far as "all legal advice" goes, I'm sure ICL/Fujitsu had legal advice in the Horizon case.

guitars4you said:

SPECTRUM001 said:

Offset said:

I must confess I had no problem with the advert as the seller was completely upfront about what s/he was selling.  There was no attempt to deceive so I can't see anything to get especially aeriated about.

I'm struggling to believe it's illegal, but then again I'm not a lawyer.

Me neither - as was once told by a lawyer colleague that a substantial part of the ‘Law’ is based on intent.

My dad's brother in law was a senior partner in a well known local firm of solicitors - He always told me if 1 is black and 100 is white, then in-between are 99 shades of grey and those 99 shades of grey is when we go to work

Aye.

But on a technicality there are 98 numbers between 1 and 100, so I guess that shows you shouldn't take what lawyers say as gospel! :-)

prowla

SPECTRUM001 said:

Offset said:

I must confess I had no problem with the advert as the seller was completely upfront about what s/he was selling.  There was no attempt to deceive so I can't see anything to get especially aeriated about.

I'm struggling to believe it's illegal, but then again I'm not a lawyer.

Me neither - as was once told by a lawyer colleague that a substantial part of the ‘Law’ is based on intent.

...as is the case with the Forgery & Counterfeiting law.

elstoof

So have we moved on from arguing whether its legal to sell, to whether the seller intended to deceive?

Philly_Q

elstoof said:

So have we moved on from arguing whether its legal to sell, to whether the seller intended to deceive?

I very much doubt there's any moving on involved, it's just cycling back round to something that hasn't been said for a page or two.

notsopro

there is only one way to settle this... yes we are heading to court!

I'll start the 'GoFundMe'. we'll need enough funds to cover cost of a fender neck, a non fender body, some other materials, pickups, strings, etc. Once put together one side purchases said guitar from the other. Then we'll use the rest of the funds to hire top legal teams for either side, upon which time cases will be made for how the wording of the law relates or doesn't relate to said parts caster. Then we'll see what the judge decides. Does sound like a fun day, could be a little on the expensive side to settle a rather moot point.

Or we could accept that the only persons opinion that matters would be a judge if a case was ever to be brought forward, (which is as unlikely as everyone agreeing on here), and all the lawyer, vs personal opinions are just that. Views based upon interpretation. 

Supportact

notsopro said:

there is only one way to settle this... yes we are heading to court!

I'll start the 'GoFundMe'. we'll need enough funds to cover cost of a fender neck, a non fender body, some other materials, pickups, strings, etc. Once put together one side purchases said guitar from the other. Then we'll use the rest of the funds to hire top legal teams for either side, upon which time cases will be made for how the wording of the law relates or doesn't relate to said parts caster. Then we'll see what the judge decides. Does sound like a fun day, could be a little on the expensive side to settle a rather moot point.

Or we could accept that the only persons opinion that matters would be a judge if a case was ever to be brought forward, (which is as unlikely as everyone agreeing on here), and all the lawyer, vs personal opinions are just that. Views based upon interpretation. 

It's possible the judge will just have every one of us locked up or executed just to see an end to it. 

guitarblaster

Everything aside, it looks to be a lovely guitar!