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Fender’s cease and desist campaign against smaller builders to stop the production of S-style guitars and protect what the company sees as the intellectual property of the Stratocaster body design raises many questions.
We do not know how long this legal campaign will take. We do not know what the guitar industry will look once it has finished, if we will be able to buy a Strat-style guitar in years to come.
There are many unknowns. There has been a lot of heated commentary. It is what some are calling a PR disaster for the ages, with prominent YouTubers cutting ties with Fender. But has the Fender game plan been hiding in plain sight all of this time?
The Regional Court of Dusseldorf was, on the face of it, an unusual choice of venue for Fender’s lawsuit against Yiwu Philharmonic Musical Instruments Co., the Chinese company which had been making straight-up Strat copies and selling them on the online retail platform AliExpress.
When Fender announced their “historic” legal victory on March 10, in which the German ruled the Stratocaster a “work of applied art” and offered substantial legal protections over its copyright, Yiwu Philharmonic did not attend the hearing.
The ruling was delivered in absentia. And yet it established a legal precedent that could be enforced across the European Union, and it is hard to see how this ruling and Fender’s campaign of cease and desist letters to builders in the US, is not a downstream consequence of the German court ruling.
Mike P. of the El Dorado Guitars YouTube channel certainly believes so, and he argues that this was Fender’s intention all along. The real target was not Yiwu Philharmonic; it was the ruling itself, something that he says could be taken back to a US court where Fender could try once more to establish similar copyright legal protections over the Strat body shape in the US.
Famously, Fender lost its previous legal case in the US in 2009 when it tried to trademark the Stratocaster. Mike P. believes that, with this ruling in its back pocket, Fender has some fresh legal ammunition to present before a court in the US. This time its luck might be different.
“Fender knew that these guys were never gonna show up and that they were gonna get a default judgement,” he claims. “Fender got what they wanted, a really serious default judgement in Europe. So Fender sends out these cease and desists to everyone, including these people in the United States.
“Now, you’re like, ‘Mike, it’s not enforceable in the United States, because there’s that ruling that the Strat is in the public domain as an electric guitar.’ Exactly. And that’s what Fender wants to go after. That’s what this is actually all about.
“This is about fender wanting to start some shit about the Strat body again in the United States. And they couldn’t do it before, but with this strategy, maybe they can.”
The theory posited by Mike P. is that Fender’s cease and desist campaign is the company “fishing for a case” and when one of these US-based builders launches one to defend itself then there is an opportunity to revisit the issues of copyright and trademark with regards to a guitar’s body shape.
If John Suhr and Tom Anderson – let’s say all these people – get a class action and sue Fender for this, that’s exactly what Fender wants
“If John Suhr and Tom Anderson – let’s say all these people – get a class action and sue Fender for this, that’s exactly what Fender wants,” he says. “Fender wants a showdown. Fender wants another day in court, here in the United States, to try and get the Strat body copyrighted again.”
Would Fender be successful? That’s another question that no one can answer right now. But Fender would not be sending out cease and desist letters if it did not think it had a chance.
As Mike P. notes, Fender, has a lot of capital behind it. And there are a lot of companies making S-styles, a lot of targets, and reportedly a lot of letters sent.
YouTubers Phillip McKnight and Tone Nerd first broke the story that LsL Instruments was the first US-based builder to be served a cease-and-desist over the production of S-styles. The family-based company has since launched a GoFundMe to support its legal fees.
Guitar World readers' reactions have been mixed. Some have called Fender's campaign “comic book level villainy” while others argue that Fender has a case, suggesting that those who want to continue making S-styles should do so under license.
