# Guitar Design Patent Process?



## TylerRay (Nov 13, 2013)

So, when a luthier comes up with a unique design, whether it be a body shape or whatever else, what is the protocol for patenting the design so that they don't get ripped off later on down the road? Anybody know?


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## AwDeOh (Nov 13, 2013)

Accuse a bunch of other builders of copying your work, blow up on Facebook about it and ban everyone from your page when they call you out.

Alternatively, you'd go through the same channels as anyone else - you'll have a list of details, drawings and such that you have to provide. The patent office will review your application to see if it doesn't infringe on an existing one, and if everything is in order they'll grant you a patent.

It's probably a little different in each country, looks like you're in the US: Frequently Asked Questions About Patents


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## TylerRay (Nov 13, 2013)

Haha. Word. Thanks, man!


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## Metaldestroyerdennis (Nov 13, 2013)

Gibson had this same question. The answer is, you can't. And that's why we have PRS singlecuts.


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## darren (Nov 13, 2013)

The Design Patent is a relatively new form of protection that only covers the aesthetics of a product or invention, not the functionality. It wasn't around when Gibson and Fender developed the Les Paul and Strat. 

Intellectual property law is gradually changing to accommodate things like three-dimensional trade marks, which is how Fender and Gibson _have_ been successful in protecting their headstock designs as a part of their brand identity. More companies are now exploring the use of trade marks to protect their bodies and headstocks, rather than the design patent.


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## ElRay (Nov 13, 2013)

darren said:


> The Design Patent is a relatively new form of protection that only covers the aesthetics of a product or invention, not the functionality. ...



I have heard that others have gone the copyright route (like you would with a piece of art). IANAL, so I'm not really sure how that would work.

Ray


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## shadowvault (Nov 14, 2013)

Its difficult to pattend something because its different in every country so if you planning to pattend something worldwide i guess this will be very expensive and difficult.My father had a "friend" who stole a guitar design that my father made and wanted to pattend it.As far as i know he epic-failed


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## Necromagnon (Nov 14, 2013)

I think it's very hard because of what has been said, and too expensive to be worthy... Custom build guitars tend to become very popular, and mass diffusion media are well implented in our modern society. So I'm pretty sure that if you see one of your design ripped of by another builder, it won't be hard to tell it around the web and let it spread all over the guitar playing/building community, and have the reputation of the ripper down as a limbo rod (considering you have real evidence of the copy).



ElRay said:


> IANAL


A new app on I-stuff for proctology?


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## chrisxrome (Nov 14, 2013)

ElRay said:


> I have heard that others have gone the copyright route (like you would with a piece of art). IANAL, so I'm not really sure how that would work.
> 
> Ray



You can't patent an individual piece of art - It's classed as an idea rather than anything else - but what you can do is trademark your signature/stamp/alias or whatever you sign it off with to prove it's your own. 

In the UK anyway. Not sure if the same applies elsewhere.


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## TemjinStrife (Nov 14, 2013)

There are four main forms of intellectual property. None of them are ideal when it comes to protecting a guitar's shape.

Trade Secrets - Trade Secret protection only covers things that are "secret." The first one out in the marketplace, or the first photo on a forum, and that protection is gone.

Trademarks/Trade Dress - Trademark protection covers distinctive, nonfunctional aspects of a mark or product shape or packaging that identify the source of the product. However, this is not ideal for guitar bodies because typically certain aspects, such as contours, cutaways, and the like, are functional, and fall outside of trademark law.

Copyright - Copyright has similar issues to functionality as trademark, especially when it comes to things that are partially "expression" and partially "functional," like most guitar bodies.

Patent - Expensive, time-consuming, and difficult to prosecute. Plus, requires a modicum of "newness" that is unanticipated in the prior art that is difficult to satisfy in many guitar shape-related cases. Design patents, which cover the design of a product, are similarly expensive and time-consuming to prosecute, and only last for a limited time.


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## redstone (Nov 14, 2013)

Speaking of that, I don't get how Strandberg got a patent for the trapezoidal neck. It's not a "solution to a specific technological problem".


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## darren (Nov 14, 2013)

ElRay said:


> I have heard that others have gone the copyright route (like you would with a piece of art). IANAL, so I'm not really sure how that would work.
> 
> Ray



My IP lawyers advised that copyright only really applies to specific individual works or small editions of fewer than 20 pieces (though that may vary from one country to another). Copyright isn't really the right approach for covering something like a distinctive 2D or 3D form.

In Canada and the U.S., there's a subset of trade mark law called "trade dress" or "distinguishing guise", which allows for distinctive shapes and forms to be protected as part of a company's brand, trade mark or intellectual property.

A design needs to have been in the marketplace for 5 years before trade dress or distinguishing guise protection can be applied for. In my case, my designs will cross that mark in 2014, and i will be applying for protection on my body and headstock shapes. I applied for a utility patent on my neck carve in 2012.


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## darren (Nov 14, 2013)

redstone said:


> Speaking of that, I don't get how Strandberg got a patent for the trapezoidal neck. It's not a "solution to a specific technological problem".



It doesn't have to be a "technological problem" that's being solved, but the design does need to have some functional aspect to it and not be purely ornamental. In Ola's case (as with my own neck carve patent application), the shape of the neck does in fact have clear ergonomic benefits in terms of how the player's hand interacts with the instrument, which are clearly described in the patent.


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## TemjinStrife (Nov 14, 2013)

Darren, my concern with seeking trade dress protection for a body shape is that such shapes are often functional. For instance, touting the ergonomics of a radiused top or a deep cutaway implies functionality, which is a significant (if not absolute) bar to trade dress protection.


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## TylerRay (Nov 14, 2013)

darren said:


> My IP lawyers advised that copyright only really applies to specific individual works or small editions of fewer than 20 pieces (though that may vary from one country to another). Copyright isn't really the right approach for covering something like a distinctive 2D or 3D form.
> 
> In Canada and the U.S., there's a subset of trade mark law called "trade dress" or "distinguishing guise", which allows for distinctive shapes and forms to be protected as part of a company's brand, trade mark or intellectual property.
> 
> A design needs to have been in the marketplace for 5 years before trade dress or distinguishing guise protection can be applied for. In my case, my designs will cross that mark in 2014, and i will be applying for protection on my body and headstock shapes. I applied for a utility patent on my neck carve in 2012.



Thanks for the input, Darren. So What do you do if someone starts ripping off your designs between now and 2014?


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## darren (Nov 14, 2013)

TemjinStrife said:


> Darren, my concern with seeking trade dress protection for a body shape is that such shapes are often functional. For instance, touting the ergonomics of a radiused top or a deep cutaway implies functionality, which is a significant (if not absolute) bar to trade dress protection.



It's more the silhouette that i'm concerned about. I didn't invent the radiused top, and other details are less important than the overall outline of the bodies and headstock. This is part of the reason why i adamantly refuse to alter the headstock shape at all. 



TylerRay said:


> Thanks for the input, Darren. So What do you do if someone starts ripping off your designs between now and 2014?



I mobilize my vast Internet army to shame the offending parties into ceasing their activities. 

My lawyers have advised me to do nothing directly myself, but to leave it up to them. Usually it involves issuing a cease-and-decist letter.

Artists, designers, illustrators, musicians&#8230; they've all had to deal with rip-off "artists" treating their work like a constant source of free material. With means of production becoming more accessible to everyday people, there needs to be renewed effort to reinforce some sense of right and wrong when it comes to copying stuff.


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## redstone (Nov 14, 2013)

darren said:


> It doesn't have to be a "technological problem" that's being solved, but the design does need to have some functional aspect to it and not be purely ornamental. In Ola's case (as with my own neck carve patent application), the shape of the neck does in fact have clear ergonomic benefits in terms of how the player's hand interacts with the instrument, which are clearly described in the patent.



The endurneck is like a twisted chair for those who refuse to sit properly. I wouldn't say it's ergonomic, but that's discutable. Anyway it's an open door to patent anything. I could patent a string spacing between 99 and 70% shorter than the standard spacing for ergonomical reasons. You can't do it anymore, I patented it first . I think I deserved a patent for having that groundbreaking idea... and tons of money.


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## darren (Nov 14, 2013)

You can't patent things that are that general in nature. My lawyers said that inventions with no moving parts (like a guitar neck) are actually HARDER to describe and patent successfully, because the functionality is much more difficult to articulate, compared to a more complex machine that has many moving parts to achieve its function.

The Endurneck is pretty cool if your technique works with it. It's not for everyone, for sure. But it does have distinct advantages if it suits your playing style and hand positioning.


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## redstone (Nov 14, 2013)

Just an idea, could we patent a body shape via its acoustic properties ?


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## ElRay (Nov 14, 2013)

chrisxrome said:


> You can't patent an individual piece of art ...



Right. They're trying to go the copyright route. Like an author, photographer, songwriter, etc.

Ray


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## ElRay (Nov 14, 2013)

darren said:


> It doesn't have to be a "technological problem" that's being solved, but the design does need to have some functional aspect to it and not be purely ornamental. In Ola's case (as with my own neck carve patent application), the shape of the neck does in fact have clear ergonomic benefits in terms of how the player's hand interacts with the instrument, which are clearly described in the patent.



And that's where other problems pop-up. You can get into a Catch-22 -- you can't argue a technological solution, because there's too much prior art, so you can't get a utility patent, but then you can't get a design patent, because the design isn't pure "trade dress" (in quotes because I don't mean the actual legal concept addressed by the term 'trade dress', I mean all the visual "crap" like the shape of a Coke bottle).

A prime example is Rick Toone's IPNP. He first introduced the TNP, but let too much slip/ship before starting the patent process and, it can be argued that there's too much prior art. So, he could not get eith a utility or a design patent.

With the IPNP, he got the design patent process rolling soon enough to protect it. As explained to me by by a cousin that is a non-patent lawyer, after about 15 mins of discussion, if somebody had a good patent attorney, and the money, and the desire, and the time, they likely could have the design patent invalidated because it actually addresses functionality and not purely trade dress-like issues. Then, they could use the prior art to void any attempt at getting a utility patent for the IPNP.

Now I doubt that anybody would fight the patent, so it is working for Rick, and that can't be argued.

Ray


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## darren (Nov 14, 2013)

My preference would have been to file for a design patent (or an Industrial Design as they're called in Canada) since it would cost about 1/10th of what it cost me for the utility patent. But my lawyers felt that there was sufficient functionality to file for a utility patent, which would offer better protection for the concept, since design patents really are meant to be for things that are purely decorative.


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