For all the legal types here. I’m hoping this isn’t too off topic, but a friend emailed me with an interesting note this evening. Basically, the question is this:
Can someone claim “trademark” to a design on an instrument in the US?
My understanding was that a “trademark” was only granted to a design, wording, or symbol that described or identified a product or company, and could not be used to try and cover an actual object or design of that object or it’s construction. I would think this would require a “patent”, correct? Whereas a “copyright” is granted for intellectual works such as a song, recording, or work of art or sculpture.
Just curious to know if this is generally accepted as correct, or if someone claimed a “trademark” referring to a design of a whistle or bodhrán for example that could be considered a valid leagal means for protecting one’s design.
curiouser and curioser.
Thanks to any who may be able to clear some air on this one…
I think you are really talking about a patent. A patent protects a unique product or process from unauthorized use . A trademark protects a business name or image that suggests an identity (such as the “Overton” name or the Nike swoosh stripe). Copyrights protect an artistic creation (such as a book or song) from unauthorized copying and derivative works.
So to address your concern (not to be construed as legal advice), you cannot patent the idea of a whistle, for example. It is both an obvious idea, and has plenty of prior examples. You can patent a new, non-obvious and unique method for creating whistles (such an the roadrunner-powered acme whistle making machine). You can also patent something that would be unique to your version of a whistle (such as a dual barreled, over and under, ten gauge windway). But musical instruments are pretty hard to patent (unless electronic).
You would best be served by consulting with a patent attorney.
That was pretty much my question. The difference between a patent and a trademark.
I didn’t think it was possible to “trademark” an instrument either. A patent is another thing, but must be registered in order to be protected I assume. In which case, any party claiming infringement should easily be able to provide the patent number.
Just what I thought. My friend recieved a very strangely (and quite terse) email from an instrument maker (who shall remain nameless to protect the guilty) claiming: “…I am protected under trademark law with regards to look and feel. I have contested and won on two separate occasions…” My very first question was can this even be true and remotely enforceable as I thought trademarks applied only to words logos designs of logos etc.? Seems like he’s getting a lot of smoke blown up his tailpipe with no real merit. Interestingly, he’s just made instruments for friends and locals so far and doesn’t sell to the general public as yet. But apparently, maker X felt threatened enough to send that email. Weird. Just weird! LOL
If your friend made a whistle that looks exactly like the other maker’s,
and puts the other maker’s name or symbol on it, then tries to sell it as
if it is the other maker’s, then there’d probably be a case. For example,
If I somehow made a plastic whistle that looked exactly like a Susato,
and then stamped “Susato” on it and sold that whistle, then I’d
be in court.
Nope. My friend has made an instrument that was inspired by several different makes of instruments, including influences from Ireland, Africa and America. No name branding of any kind has been applied and nothing other than the design of the instrument is being contested. Nor is he selling his work under the guise of being from the maker who sent the email. His (my friend here) are in fact mush better. Wonder if that’s what got the goat of our nice maker X who sent the email.
Hmm- There’s trademarks, trade dress, patents & copyrights and sometimes the lines separating them blur a bit. Also, there’s jurisdiction- what country are you talking about? If an individual can convince an examiner that what he or she has is unique and worthy of protection (and you’d be surprised at what folks will file for and get away with) then they get a registration- be it trademark or copyright. Now, just because they have a registration doesn’t mean it can’t be shot down if someone comes along and proves that the design wasn’t unique or that they weren’t the first to introduce it. I’m not an attorney either but I can do some investigation for you (I have free resources) if you wish to send me a p.m.
The point being made by maker X was specifically that the “design” of the instrument was protected under trademark. I would think a patent would be something closer to the mark, but again, it would need to be registered in that case - which is seems it is not. Robin, I’ll fire you over a PM. Thanks.
Welll… no… not really… if you took someone else’s design and precisely duplicated it, then sold it as your own, you would be in for a fight… one the original maker could win. It’s copyright infringement, whether it is trademark infringement or not.
Only if the item has a patent. Judges don’t examine piles of flutes, for instance, to understand flute design influences, etc. They depend on legal filings - trademark creation or registered trademark filings, patent filings, copyright proof.
Actually trademarks can most certainly be used to protect the designs of musical instuments - but it’s got to be easily recognizable and fairly unique. This issue crops up all the time in the electric guitar world - especially because they can be quite visually distinctive.
To cite a well-known instance, Rickenbacker’s guitar designs have oodles of trademarks all over them. Specifically, details such as the shape of the headstock, the “slash” sound hole (On other models), the logotype, the pickguard, even the pickups (And probably the overall body shape but I’m not sure about that.)
Exhibit A
Everybody proably recognizes that instrument as “John Lennon’s Guitar.” It is not the original, but it is a faithful reissue. RIC has a lot of value tied up in that image, and is notorious for it’s commando-style legal department. They will issue cease and desist orders to anybody who attempts to sell a clone on ebay. Rickenbacker is one of the few guitar companies that has successfully defended its trademark designs.
Exhibit B
Fender is the company responsible for the guitar above. But they did not actively defend the trademarked shape of the headstock or the body, and so the “Fender” style has become the generic template for an electric guitar. (also totally boring, IMO )
I doubt that one could successfully apply this strategy to whistles, however. . .perhas a visually distinctive mouthpiece or something. On a guitar you’ve got a lot of surface area to play with.
If the instrument maker in question makes whistles, such a claim is laughable… and threatening legal action against someone who doesn’t even sell commercially is even more laughable!
Anyone who would have legal claim to patent the “look and feel” of a whistle has been dead for generations, and even with some modern advancements in design, a whistle is still a whistle.
So long as nobody copies a brand name or otherwise tries to pass off their instruments as someone else’s, there can’t possibly be any legal repercussions.
It would be unethical to exactly copy someone else’s design without their permission, but there’s nothing illegal about it… unless the copycat in question trained under the person who originated the design, and failed to honor a legally binding agreement to pay royalties in return.
It’s amazing how many people claim to be the first to do something different with whistle design, when in reality someone else did the same thing years ago!
Every whistle made today is just a variation of a common and very old idea, and at the end of the day all that really differentiates them is quality… rare hardwoods and precious metals can still be made into a horrible whistle, and a talented maker can whittle a quality instrument from a stick!
The instrument in question was not a whistle, but is commonly seen in sessions. The design elements he’s trying to claim protection for however seem to be present not just on other makers instruments that I’ve certainly seen, but also on instruments of different ethnic background - yet similar in construction.
I’m still expecting that this will all blow over as so much hot air. The irony is that the instruments made locally here seem to better maker X’s design in many aspects. Perhaps the bruised ego and sharp tounge from him. Who knows…
From the US Patent and Trademark Office
A trademark is a word, phrase, symbol or design, or a combination of words, phrases, symbols or designs, that identifies and distinguishes the source of the goods of one party from those of others.
A service mark is the same as a trademark, except that it identifies and distinguishes the source of a service rather than a product. Throughout this booklet, the terms “trademark” and “mark” refer to both trademarks and service marks.
Do Trademarks, Copyrights and Patents protect the same things?
No. Trademarks, copyrights and patents all differ. A copyright protects an original artistic or literary work; a patent protects an invention. For copyright information, go to http://lcweb.loc.gov/copyright/. For patent information, go to http://www.uspto.gov/main/patents.htm.
People claim all sorts of rights. One successful result of having an ornery reputation for legal action is that many people/companies don’t feel it is worth their while to sue. Anyone can sue someone but it is expensive.
Yeah Jim, I did some quick and heavy research into the trademark thing last night. And it sounds as if this guy is just trying to strongarm our local guy without a real (and valid) legal stance. At least not as he presented his case anyway.
It sounds to me like a trademark would govern an identifying but non-functional characteristic of the instrument, whereas a patent would govern a functional feature. For example, a whistle maker might be known for his “trademark” purple finger holes which don’t affect the function of the whistle but make it distinctive (if a bit wierd), whereas someone might patent a new spring-loaded and cholesterol-free whistle tuning apparatus.
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