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Vintage v400mh mahogany topped dreadnought acoustic FS - £100
I had a whole group (it seemed!) turn on me for dissing Chibsons, to the point of them stealing my pix and trying to bully me! Cracking day that was....
Seems every other guitar has a disclaimer 'note not real Fender/Gibson but just as good' (and also just as sporting a fake logo on the headstock).
I’m so bored I might as well be listening to Pink Floyd
contactemea@fender.com
How does Simon Cowell get away with it then?
My music:- https://soundcloud.com/hubobulous
Vintage v400mh mahogany topped dreadnought acoustic FS - £100
Passing Off
The other matter to consider is the common law of ‘passing off’. Passing off is a civil claim that exists under the common law (no statutes to refer to, but the leading case is Reckitt & Colman Ltd v Borden Inc [1990] 1 All E.R. 873 – the ‘Jif lemon case’). Passing off protects the ‘good will’ or reputation that a particular seller may have built up in the market (this is best thought of as the consumers attraction to a particular brand). To succeed in a passing off action the claimant needs that; (1) it has good will in the market place; (2) there is a misrepresentation on the part of the defendant that would cause ordinary members of the public to believe that the goods or services are in fact those of the claimant; and (3) the misrepresentation damages the goodwill of the claimant.
In this case (1) and (3) are largely questions of fact and in any litigation involving passing off the claimant will often have produced numerous market surveys to demonstrate how its brand has ‘good will’ in the market place and how the defendant’s misrepresentation has damaged its brand image (if you have ever taken part in one of those surveys outside the supermarket or on your door step where they ask if you recognise X product just from its slogan or from the packaging with the name blanked out, you may have inadvertently contributed evidence in a passing off case). However it may be assumed that in the case of the classic guitar designs they won’t have too much trouble demonstrating that they have both ‘good will’ and that a misrepresentation will damage that ‘good will’.
If we therefore turn to the second requirement, that ‘there is a misrepresentation on the part of the defendant that would cause ordinary members of the public to believe that the goods or services are in fact those of the claimant’ which is the crux of the issue here. The nature of this test really requires that the ‘look and feel’ and packaging and presentation of the product would lead an ordinary member of the public to assume that the guitar originated from the claimant rather than from its actual origin. Again this is a factual test that in any passing off claim is usually supported by market research. However in the case of actual reproductions it is almost inevitable that this test will be satisfied. As previously pointed out the test is on objective one that is based on the reaction of ordinary people so to be effective any disclaimer would need to be obvious to any observer (i.e. small print in the contract of sale or a notice discreetly located on the product such as under the scratch plate or in the neck pocket is no good, but spraying ‘fake’ across the front in red paint would probably do it).
Criminal Law
Both passing off or trade mark infringement although themselves civil actions can be relevant in criminal counterfeiting cases. Such cases are pursued under the Fraud Act of 2006. Generally speaking fraud requires that a person either; (1) dishonestly make a representation that he knows it is untrue or misleading or knows it might be untrue or misleading for the purposes of gain or (2) dishonestly fails to disclose information that he is legally obliged to disclose for the purposes of gain. Thus claiming you partscaster is a genuine 'F' is actually a criminal offence (again no surprise there), but so is claiming that your guitar is genuine if you have some doubts about this fact, even if you bought it as genuine. In these cases a disclaimer communicated to the recipient that the guitar is a fake or suspected fake prior to a sale is effective as it negates any alleged misrepresentation.
What may come as a surprise to some is that possessing, supplying or making items for the use in fraud is also a criminal offence in its own right. In this instance proving that your ‘fake’ guitar is owned for the purposes of fraud is probably impossible until you actually sell it (in which case you have committed actual fraud), and as this provision is really aimed at people who have credit card cloning machines in their house it is probably not that relevant. It might be an issue if you have a big box of unused 'F' decals under our bed, but even then it is easy to claim a legitimate use (restoring legitimate guitars with damaged logos) that would be virtually impossible to disprove. Making or supplying articles for use in fraud is potentially more relevant as it is possible that you could sell your fake guitar on (disclosing that it is a fake), but your buyer then resells it as genuine, at which point you have supplied goods for the use in a fraud, however the law in this area requires intention that it was supplied for the use in fraud, or knowledge that it was made for the use in fraud which again are difficult to show
The fact that the crown prosecution service must be satisfied that they have a reasonable change of a successful prosecution and that prosecution is in the public interest before pursuing a case means that most prosecution is more likely to be limited to actual cases of fraud or larger scale counterfeiting operations that are churning out fakes, rather than small independent builders who are applying ‘F’ logos at a customers request with full disclosure.
:-O
My music:- https://soundcloud.com/hubobulous