It is free to claim a trademark. One needs to research, pay and register a ‘registered’ mark. Patents need to go through patent attorneys or one will likely waste their time.
It is easier to tweak a change than see a challenge in court.
Sounds to me like a play on words.
A picture, letter, symbol stamped on the instrument is called a design.
The structure of how the instrument is built is the design of the instrument.
In both cases, the word ‘design’ is being used. As you see, the language could be used deceptively.
The way the whistle is made can only be patented and there would have to be something worth patenting, vertical end blown flutes have been around for thousands of years.
But the essence of a great whistle is how the inside works and is ‘tweaked’. Also, innovations like an adjustable fipple that changed the air flow over the open hole or a square or triangle whistle - who knows what is patentable and worth taking to market.
The argument being made by maker X is the apperace of the instrument and not the way it functions. However, our local maker used the methods he did precisely as functional elements. The elements have also been in use for centuries and in many different countries it seems. I don’t think he’s got a leg to stand on (maker X) but we’re looking into things very carefuly to be certain.
I wonder. I know that, for example, typeface designs cannot be copyrighted–even explicitly. Our actual PostScript fonts were copyrighted, because PostScript is a programming language, and each font is a little program. However, we had no way to keep someone from printing our fonts, scanning them, and then using software to automatically generate PostScript fonts from them, because the details of the resulting fonts weren’t identical to ours. This went a long way to putting Casady & Greene and many others out of the font business. (Which was too bad, because it also meant that lots of people quit coming out with new typeface designs, as it was no longer worth our time to spend months on a design that someone else could simply copy with little effort.)
As far as I know, “look and feel” has never been shown to be copyrightable. The Apple vs. Microsoft suit was entirely inconclusive.
Patents require both innovation and functionality. If someone came up with a previously unused whistle design element that improved some aspect(s) of whistle sound or playability, they could patent it–but it would have to be done explicitly.
“Industrial designs” may be protectable, but this requires registration of the design. According to Wikipedia, “Industrial design rights are intellectual property rights that protect the visual design of objects that are not purely utilitarian.”
Wikipedia also says that a trademark is a kind of industrial design, but, “Conventionally, a trademark comprises a name, word, phrase, logo, symbol, design, image, or a combination of two or more of these elements.” To me, this means that a product design may be an “industrial design”, but it would not be a “trademark”.
There certainly is a bit of overlap. It depends, too, on how much justice you can afford. You might be right but lower courts side with the ‘bigger’ outfit and you are forced to shell out big bucks to prevail. That is why people tweak designs - which is simple - to avoid those situations.
Even getting a patent is no guarantee against future royalties since you have to often pursue payments. There are cases against Sears that take over 10-15 years to come to resolution. When the solo patent holder wins, though, it is a big pay day.