“So common that it is depicted as a generic electric guitar in a dictionary”: When Fender went to court and lost – the 2009 court ruling that failed to trademark the Stratocaster

If Fender’s cease-and-desist campaign against manufacturers of S-style guitars feels familiar, that’s because it is. We have been here before.

Over the years, Fender has spilled considerable treasure in trying to win legal protections for its most iconic designs. The most infamous of such rulings arrived in 2009, bringing an end to five long years of litigation in an attempt to trademark the body shapes of the Telecaster, Stratocaster and Precision Bass – and it was bad news for Fender.

The Trademark Trial and Appeal Board (TTAB) of the United States Patent and Trademark Office ultimately ruled that the shapes were now “generic” instrument designs. Furthermore, despite more than 20,000 pages of evidence being considered, Fender had not established “acquired distinctiveness” over the two-dimensional outlines of the body shapes.

Fender had argued that the shapes were famous as Fender designs, that consumers associated them with the brand. It presented survey evidence.

Press cuttings were submitted, such as Rolling Stone’s ‘American Icons’ feature in its 35th Anniversary Special issue, which described the Stratocaster as “rock ’n' roll’s ultimate guitar” that “looks and sounds like America”.

The TTAB didn’t agree. It rebutted this evidence, citing Fender’s own advertising materials in the mid and late ’80s, notably one advert in the August 1986 issue of Guitar Player – “There’s only one Eric Clapton. And only one Fender” – and a 1988 ad in Guitar World that read, “You’re not taken in by look-alikes or by wild claims”.

That Fender was addressing the fact that countless manufacturers were making Strat-style copies, and that its strategy to counter these rivals was through marketing and not the courts, suggested that it recognized that guitar players understood the market for these guitars and could already distinguish a generic S-style from a real Strat.

Everyone will have their own opinion on that, and that is what makes the 2009 case so fascinating. It is instructive, throughout the case documents, just how the public’s perception of these designs figures in the arguments for and against trademarking these body shapes – and also how Fender has looked to shape these perceptions through marketing its products.

“It is clear from this record that guitar consumers in the United States have been exposed to a multitude of the Strat, Precision Bass and Telecaster body shapes, either as complete guitars or as guitar parts, coming from and being associated with third parties,” said the TTAB.

“The evidence overwhelmingly demonstrates that these configurations are so common in the industry that they cannot identify source.”

The TTAB even cited the Random House Dictionary of the English Language Unabridged as an example of how popular culture perceived the Strat body design as generic.

“In fact, in the case of the Stratocaster body outline, this configuration is so common that it is depicted as a generic electric guitar in a dictionary,” read the judgement.

In the 2009 case, Fender found its trademark application being opposed by a large group of manufacturers including Spector, ESP Guitars, Peavey Electronics, U.S Music Corporation and Lakland Musical Instruments, all represented by Ron Bienstock.

Notably, as Guitar World reports, Bienstock has been hired once again to represent at least one of the companies in receipt of a letter from Fender’s lawyers. It may well face similar opposition once these developments reach a court.

Given this isn't Bienstock's first legal tangle with Fender, he is uniquely positioned to defend those companies who have been targeted. In a response letter served to Fender on behalf of one of his clients, he highlighted the ways in which he believes Fender’s legal campaign is doomed to fail.

However, none of this means to say that Fender actually will lose again. Fender has been successful before in protecting its trademarks, most notably in the mid ’90s when it won legal protection for its headstock shapes.

This application was similarly opposed by a number of manufacturers, and as a result, aftermarket manufacturers such as Allparts and Warmoth Guitar entered into licensing agreements with the Fender that allowed them to sell “replacement necks” under a number of conditions.

There could be no brand insignia on the necks (the Warmoth turtle was out), no text at all, and they had to be sold separately as replacements, and not as part of DIY kits or finished guitars.

Warmoth's Fender License Explained - YouTube

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Fender’s most recent legal victory is the catalyst for the latest developments. In March, the Regional Court of Dusseldorf, in Germany, ruled that the Fender Stratocaster was a copyrighted work of applied art under German and EU law.

The case was brought against Chinese manufacturer, Yiwu Philharmonic Musical Instruments Co., which was then ordered to cease manufacturing, offering or distributing guitars featuring the Stratocaster body shape in Germany and the EU.

Yiwu did not attend the hearing, meaning Fender faced no challenge and was the victor by default. Fender’s legal team seems to have then used the momentum of the ruling to issue the cease-and-desists to other firms. The question will be how much bearing this European ruling will have in a US court.

The difference this time, of course, is the nature of the dispute. In 2026, Fender isn't seeking to establish a trademark for a raft of its electric and bass guitar body shapes, but is instead using copyright as a way to ensure enforceable legal protection for the Stratocaster design as a work of art, akin to a piece of music or literature.

The case here, then, isn’t concerned with whether Fender can disprove the Strat body shape specifically is generic to establish a trademark. Rather, it is about whether the company can argue the Strat shape is not simply about function, but instead represents genuine creative achievement and distinction – and that those served a cease-and-desist have infringed upon this.

In contrast, what is notable about the 2009 ruling is the testimony from Spector, Lakland, Warmoth, Peavey et al that argued the sheer ubiquity of these body shapes since the '70s had contributed to the Strat, Tele and P Bass as being generic.

There were thousands of guitars with Stratocaster body shapes, thousands of Precision Basses. Their argument was that no-one could look at the body shape and determine it was made by Fender.

“They have become traditional shapes over the last 50 years and these shapes are made by hundreds, maybe thousands of companies,” said Hartley Peavey, owner of Peavy Corp. in his testimony.

Matt Masciandaro, president of ESP Guitars, also argued that the Strat was a “generic” body style that had been in production from countless manufacturers for 50 years, and that the market for guitars and consumers understood this.

“And we’ve been making it for 20 years in the United States… The people we deal with and our customers have grown up in a market where these shapes have been made by every manufacturer that they see, whether it’s in a store or on a stage, all making a similar shape to this... Every company makes it.”

They argued that Fender was trying to put the toothpaste back into the tube. The TTAB agreed. Whether the copyright approach will work for Fender in its 2026 attempt remains to be seen.