A civilized debate on Ric "copy" instruments

[sixandeightstringer]

It has been said that it is illegal to own, sell, or buy a guitar commonly known as a "lawsuit" copy of Rickenbacker instruments. I was called to task in another thread for having a "Rant" about how Rickenbacker over-enforces their trademark protection, and I believe it would be nice to have an open-minded debate on what the real facts are, since they are very clouded. On one side of the fence, the Ric loyalists feel it is Ric's right to quash any eBay auction or other sale of an existing instrument that was created to be a copy of Ric's trademarked axes; on the other side, folks like me, who say that while it is wrong to create NEW copies, or sell the fakes as if they were real Rics, it IS legally and morally okay to sell the existing basses that were made 30 years ago.

So the debate continues. Personal feelings aside, I should hope that people can rationally state their case WITHOUT libelous comments about the other people - or the usual glut of logical fallacies (there's a good page detailing logical fallacies at http://www.nizkor.org/features/fallacies/ - check it out.)

This is the sort of thread that would immediately be closed and deleted at the official Ric forum, but hopefully the folks here are brave enough to actually examine the truth.

So, any takers?

[johnhall]

Not only does the company have the absolute legal right to stop the sale of copies- old or new- the current state of trademark precedent REQUIRES us to do so, if we wish to retain the trademark. The lack of enforcement over the years by some of the other makers is precisely why some of those designs are now likely in the public domain.

There is no way we are going to permit the seller of such an infringing instrument jeopardize the validity of our mark, given the long investment we've made in the brand. Let's also clarify that our registered trademarks include not only the name and logo, but the shape of the body, head, and many other details such as tailpiece and pickups. These are lawfully filed registrations, which have already stood the test of the federal court; in the words of federal judge Harold Pregerson "Rickenbacker indeed has valuable and protectible trademark and trade dress rights in the design and configuration of its guitars and "Rickenbacker" trademarks . . ."

If a seller offers infringing goods like a copy guitar through a local newspaper, it's unlikely we or the court will see it; we then have no burden to enforce the mark if we can't reasonably see infringing use of it. On the other hand, the globally accessible Internet is so visible that we HAVE to act or run the risk of invalidation.

There's also another concept called "trademark dilution" that plays into this. While it's very unlikely anyone here would mistake a copy for one of our instruments, the majority of people are not so savvy as to be able to determine real or fake. As a result, unsophisticated persons can get the wrong impression of the quality of our product when they observe a copy- which then "dilutes" the value of our brand. In a nutshell, it's entirely unfair . . . and costly to the company . . . for us to be judged by a copy.

I'll reiterate that the age of an instrument and its source are entirely irrelevant to these concepts.

By the way, is your father by any chance, the same Bob Gollihur that was a principal of Gollico Ltd., briefly our distributor in the U.K. many years ago? If so, that would be a very interesting story to recount here.

[sixandeightstringer]

By the way, is your father by any chance, the same Bob Gollihur that was a principal of Gollico Ltd., briefly our distributor in the U.K. many years ago? If so, that would be a very interesting story to recount here.

No, he is not - we have no relation, that I know of, to any Gollihurs in the UK. And I'd never heard the name in relation to a UK music distributorship, either.

[sixandeightstringer]

Not only does the company have the absolute legal right to stop the sale of copies- old or new- the current state of trademark precedent REQUIRES us to do so, if we wish to retain the trademark.

I've seen you post almost this exact same text in a number of places, and I understand why since you seem to be asked to answer this question often (which naturally follows, considering your aggressive enforcement techniques).

However, the statement above is meaningless, and I respectfully ask you to qualify it. WHAT IS the current state of trademark precedent? How does it REQUIRE you to stop the sale of pre-existing, 30 year-old copies - as long as they are not marketed as actual Rickenbacker instruments? Your language in that statement sounds impressive, but it doesn't really say anything but "because we said so."

The lack of enforcement over the years by some of the other makers is precisely why some of those designs are now likely in the public domain.

True in some respects, but a bit overstated. It doesn't excuse the heavy-handed monitoring and suppression of the used market. If you neglect to stop legal used-market sale of a '76 Ibanez on eBay, it doesn't mean that suddenly new Chinese RIC copies are going to spring up in every Guitar Center in America tomorrow.

There is no way we are going to permit the seller of such an infringing instrument jeopardize the validity of our mark, given the long investment we've made in the brand.

The RE-seller of an instrument does not do that, only the maker does.
here's a modern, hypothetical analogy: Let's say you were one of the couple hundred thousand folks who bought a Scion XB in the last few years. Let's say, hypothetically, that Honda decided that the XB looks a little too much like their Element mini SUV (it really doesn't, but this is a hypothetical, so play along) and sues Scion. Honda wins and/or settles the suit, and Scion is told to cease and desist, pays a large fee to Honda, redesigns or discontinues the XB, and life goes on. What if you're one of those people who bought the "lawsuit" XB? Are you allowed to drive it anymore? Are you allowed to privately sell that car to someone else? Buy a used one that's advertised in the paper? Can Honda sue a used car dealer who takes one in trade? Can the cops pull you over for driving one on public roads?

While it's very unlikely anyone here would mistake a copy for one of our instruments, the majority of people are not so savvy as to be able to determine real or fake. As a result, unsophisticated persons can get the wrong impression of the quality of our product when they observe a copy- which then "dilutes" the value of our brand. In a nutshell, it's entirely unfair . . . and costly to the company . . . for us to be judged by a copy.

I agree with that point wholeheartedly, and I would applaud your actions if you were only shutting down auctions or sales where someone were selling a copy as a legitimate RIC; but it's ridiculous to assume that someone evaluating the quality of an instrument in their hands would think it was a RIC (and judge it as one) if it has "IBANEZ" on the headstock (or "RickenFaker," for that matter.)

I'll reiterate that the age of an instrument and its source are entirely irrelevant to these concepts.

And I'd still like to be enlightened on how that can be true - other than your say-so - when you're speaking not of someone who is manufacturing something new, but rather selling a pre-existing item.

Thanks for your measured and civil reply. I hope that you feel that my response is similarly so, it is my intent.

[tennis_nick]

Based on your posts here, I can't see how you would disagree with the following then, your answer will be telling though... Since the shape of the TRC is under trademark, do you think you've done something wrong/illegal when you made a copy of the shape with new script?

[phlemmy]

So much for having a "civilized" debate.

[sixandeightstringer]

Based on your posts here, I can't see how you would disagree with the following then, your answer will be telling though... Since the shape of the TRC is under trademark, do you think you've done something wrong/illegal when you made a copy of the shape with new script?

No, on several counts.

1. The shape of the TRC on my bass was already as it appears. I simply made a vinyl appliqué to cover the original "Ibanez" logo and then a second black one with the "Rickenfaker" logo.

2. More importantly, the "Rickenfaker" logo is also legal, as it is "fair use" (parody) - no less so than the old "Wacky Packages" trading cards they used to sell in the seventies.

[sixandeightstringer]

So much for having a "civilized" debate.

I do not understand your post. No one has been uncivilized.

[j_gary]

Hi Mark, I feel your pain, but my read on JH's response is that it makes it very clear he must take action to protect us and Rickenbacker from the slippery slope created by copy cats.

Your point by point analysis of his response while insightful, suggests you have been fortunate enough to never have been involved in this country's civil court system. The post by JH shows he has been required to spend lots of time and money talking to highly paid lawyers. You cannot use simple logic or common sense to address this issue. You would need to take a long & expensive journey through the case law of our complicated civil system. Lawyers are well paid to save us from ourselves in this system.

The fact that JH would take the time to present such an extensive post on the topic should indicate how serious this issue is to Rickenbacker. I would think he has way too much to do to be bothered addressing this thread unless he felt that he must. I would offer that if you took the post to any civil lawyer he could provide chapter & verse on the specific origin and history on each point you contest. At about $150 an hour of course.

[tennis_nick]

Based on your posts here, I can't see how you would disagree with the following then, your answer will be telling though... Since the shape of the TRC is under trademark, do you think you've done something wrong/illegal when you made a copy of the shape with new script?

1. The shape of the TRC on my bass was already as it appears. I simply made a vinyl appliqué to cover the original "Ibanez" logo and then a second black one with the "Rickenfaker" logo.

But to sell a piece that is made to go over an infringing piece, are you not by association profiting from someone elses design?

[teb]

While I certainly don't always agree with everything that JH and The Rickenbacker company say and do, while reading his post above, I literally was thinking to myself "Man, this is crystal-clearly stated and excellently written!". It seemed to plainly lay out the situation that they find themselves in on a continual basis and what they have to do if they want to maintain the uniqueness and quality reputation of their products. No insult intended, but I really don't see how anyone could find fault with that approach or JH's explanation of it unless they simply disagree and chose to do so.

[lennon211]

I'm quite glad that Ric and many of the devoted players and collectors help to protect the market as much as they do. Mr. Hall's explanation seemed very simple and straightforward despite the fact that preserving copyright and trade dress is often not straightforward or simple. To me, this situation is similar in some respects to movie bootlegging. If I went to Asia, bought a number of bootleg films and then brought them back and sold them, I would be just as guilty for distributing such films as would be the pirates who initially burned the discs. Just as I would be if I was selling something also fraudulent like a bootleg Ric copy. Unfortunately the application and exercising of copyright law and the idea of intellectual property are inconsistent in the United States and even more drastically so once you begin crossing international borders.

[admin]

Mr. Hall. Thanks for your straightforward discussion of RIC's trademarks. I appreciate you taking the time to educate those who, from time to time, seem to have difficulty understanding this issue.

From an academic viewpoint, It is possible to argue about anything and this sort of thread certainly makes that case. Whether such arguments are meaningful and productive is another matter.

At the end of the day, however, almost all who frequent this site do so to discuss the fine products that RIc has offered for more that 75 years and to learn as much as we can about them.

For those of us who have been talking about Rickenbackers on this site for a decade now (beginning with alt.guitar.rickenbacker), this sort of argument is old hat and wears thin. It is unfortunate that some choose to argue about this issue rather than offering new insight into the reality of what is and not what they would like it to be.

Teb: I am with you all the way on this one. Well said.

[ajish4]

While I certainly don't always agree with everything that JH and The Rickenbacker company say and do, while reading his post above, I literally was thinking to myself "Man, this is crystal-clearly stated and excellently written!". It seemed to plainly lay out the situation that they find themselves in on a continual basis and what they have to do if they want to maintain the uniqueness and quality reputation of their products. No insult intended, but I really don't see how anyone could find fault with that approach or JH's explanation of it unless they simply disagree and chose to do so.

AMEN, over & out..

[wj350]

Well, of course it makes sense to me to do everything Ric feels is necessary to protect their legitimately authorized patents. Fight it, win it, do whatever makes sense.

Having said that, this on-going argument reminds me of a similar discussion on a golfing forum I used to frequent. The argument there was over patents on cavity back irons. Ping was the first to do it, but just about every major manufacturer offers a cavity back iron. Exactly who has the rights to a design? Is a double cutaway unique because of how Ric (or Fender, or Gibson, etc.) execute it, or is it unique for being a double cutaway?

Fender for whatever reason appears to have focused on headstock design, which seems to make sense as much as just about anything else to me.

In theory, should everyone be paying royalties to whoever invented the first electric guitar?