Austin Padgett and Rusty Close move from sports jerseys and Florida State legends to yacht rock lore and double-neck guitars to discuss how patents and trade dress shape the guitar industry.
In this episode of No Infringement Intended, Austin Padgett and Rusty Close move from sports jerseys and Florida State legends to yacht rock lore and double-neck guitars to discuss how patents and trade dress shape the guitar industry. Using Stratocaster contours, SG cutaways, and iconic silhouettes like the Les Paul and Flying V, they explain why utility and design patents expire and how trade dress depends on nonfunctionality and acquired distinctiveness. The discussion shows how signature headstocks and logos became enforceable trademarks and why early, disciplined enforcement matters for consumer brands.
No Infringement Intended — From Stairway to Sailing: Can Trade Dress Protect Iconic Guitar Designs?
Hosts: Austin Padgett and Rusty Close
Recorded: August 28, 2025
Aired: November 18, 2025
Austin Padgett (00:13):
Come one and come all. Welcome to No Infringement Intended, an intellectual property podcast of our law firm, Troutman Pepper Locke, hosted by the so-called bad boys of intellectual property, Rusty Close, and myself, Austin Padgett. While you're settling in for this episode, please make sure that you're subscribed and pour some five stars out for your friends over here. In our pre-recording prep session with upper management, they reminded us that one: we're great. Two, that data suggests that this podcast may be changing the entire legal related media landscape, but three, reminding us that there may be some people who are just now starting to listen. So, if you're new, please make sure to go back and listen to our archived episodes. Each episode certainly stands on its own, but we're building something here and we want you to be fully informed as we make our way into the later episodes. We'll try to reference those episodes when we can to cross off that topic, but if we've covered it in depth elsewhere, but just a heads up that there are earlier episodes that you may really love. On to the new stuff though. Rusty, what do you want to talk about today?
Rusty Close (01:17):
Well, we're kind of carrying over a little bit of a sports theme from our last episode as we get started, and I got a question for you. How do you feel about grown men in particular wearing sports jerseys?
Austin Padgett (01:29):
As opposed to kids, right?
Rusty Close (01:31):
Kids, I feel like they can get away with it. No problem. You may have a stronger opinion on the adults.
Austin Padgett (01:36):
Yeah. Nothing wrong with a kid wearing a jersey. I don't begrudge any adult who has a jersey and just loves it. But to me, that's the costumery of the players in the game and for kids who have a dream.
Rusty Close (01:48):
Yeah, fair.
Austin Padgett (01:49):
I don't know if you've ever worn or even seen worn, like an actual football jersey without pads. It just does not look right, and it's not supposed to. If you buy a jersey off the rack, it's already been tinkered with to look presentable as a non-participant. I don't even know if it really counts, but I love fan gear and wearing it and seeing what people can do with it. There's some cool mashups up there for different teams’ fans.
Rusty Close (02:15):
I mean, look, I will cop to owning baseball jerseys. Those I think are a little more casual and can fit pretty well if you’re going to a baseball game. Particularly fond of a powder blue Bob Horner, Braves jersey that I have that gets a lot of good compliments if I wear that to a game. We all know it's canon on this podcast, big Florida State fan.
Austin Padgett (02:38):
I am. Yeah. Guilty as charged.
Rusty Close (02:39):
Might I throw out potential options for Florida State jerseys?
Austin Padgett (02:43):
Okay. It would have to be in the teal blue. The tribal blue is very cool in the stores, but yeah, totally with it.
Rusty Close (02:51):
Does Number 50, does that one bring to mind anyone for you?
Austin Padgett (02:54):
There's only one person it could be because FSU is very selective on whose number gets retired, but number 50 comes before my time as a fan. But you're definitely talking about a nose guard.
Rusty Close (03:07):
It doesn't come before your time as a wrestling fan though, which is also well established on this podcast.
Austin Padgett (03:11):
Very true. Ron Simmons did wrestle.
Rusty Close (03:12):
Yeah, number 50. Exactly. It'd be better, perhaps better known, as Farooq from the WWE or a member of the tag team Doom, which I had gone to some radio onsite thing and they were giving away wrestling t-shirts. This is probably sixth grade, and had a nice Doom t-shirt that I took away from that event. Then of course, there's number 21 that any Florida State fan should know.
Austin Padgett (03:38):
I know who you're trying to get at, but I would be remiss as a Florida State fan if I didn't tell you that Deion Sanders actually wore number 2 at FSU.
Rusty Close (03:46):
Oh, that's right. When he was at Florida State.
Austin Padgett (03:47):
Yeah. Number 21 primetime, except I forget the team – was it the Ravens where he couldn't wear 21? There was one team where he couldn't wear 21, but yeah, in his total pro career, 21, but FSU – oh man, the deuce is loose.
Rusty Close (04:04):
Yeah, and I don't know if that's still okay if you're down in Tallahassee now that he's the Colorado coach.
Austin Padgett (04:12):
Shout out to my mom here for buying me Prime sneakers when I was a kid. I will never forget the joy that man brought me as a player and as a brand for very cool shoes from a very cool mom. I love you, mom. Thank you.
Rusty Close (04:26):
I would think that around the same time I got my Doom t-shirt was when Deion showed up on the cover of Sports Illustrated after getting drafted by the Falcons, which is just a legendary image as far as Sports Illustrated covers go. Alright, couple more quick ones. 17. That one should be pretty easy.
Austin Padgett (04:43):
Yeah, that's Charlie. Yep. Heisman winning Charlie Ward.
Rusty Close (04:45):
Yep. 28.
Austin Padgett (04:56):
That's Warrick Dunn.
Rusty Close:
Yep. Another Falcon. Legendary good guy in the community. These two, I really could see you wearing. Number 16.
Austin Padgett:
Yeah, this is a retired number. This is a cherished amongst FSU fans of Chris Weinke.
Rusty Close (05:01):
Chris Weinke, who was what – all of about 32 when he was playing at FSU?
Austin Padgett (05:05):
Yeah. I mean, he was a ball player of all sorts. Yeah, absolutely. He had a very mature presence in the locker room.
Rusty Close (05:11):
Number 38.
Austin Padgett (05:12):
Oh man, Sebastian Janikowski. We had Aguayo later who was a great kicker as well, but Sebastian would – I remember on kickoffs him just for no reason, just putting it through the upright just because he could.
Rusty Close (05:24):
Completely pummeling the ball.
Austin Padgett (05:26):
I mean, unbelievable. Yeah, it was legendary. Yeah. There's just a string in numbers, particularly for fans who were in the eighties and nineties when the team just had all sorts of personalities and folks involved. Number 10, Derrick Brooks and Peter Warrick at 9 and later even you had Jameis Winston, big number 5. Lots of players I’ve left out but shout out to all of them. I love you all. Thank you for contributing to the team.
Rusty Close (05:53):
All of them. Yes, all of them. Can you conjure up in your mind the old powder blue Houston Oilers jersey?
Austin Padgett (06:01):
That blue is iconic. It still sticks in my mind. It's very close to the powder blue of the Atlanta Braves. Yeah, I like that color a lot.
Rusty Close (06:09):
Yes, very much. I mean, the early eighties really, it's almost like teams had their home in a way, but also a lot of them had a powder blue. St. Louis Cardinals and the Phillies had powder blue. Do you remember number 34 for the Oilers?
Austin Padgett (06:23):
Man, I only remember – I mean, Warren Moon wore number 1 his entire career, so I cannot tell you who number 34 was.
Rusty Close (06:31):
Well, the one I'm thinking of is going to predate him by a little bit, but it's Earl Campbell. Legendary running back.
Austin Padgett (06:36):
“The Tyler Rose”. Yep, yep, yep.
Rusty Close (06:38):
Yeah. Yep. There is a YouTube clip that you can dial up and you can find footage of Christopher Cross performing on a show called The Midnight Special, wearing a powder blue Earl Campbell jersey.
Austin Padgett (06:53):
That’s pretty incredible.
Rusty Close (06:54):
It really is just about perfect.
Austin Padgett (06:57):
If I remember right, Campbell was kind of known as a very hard hitting – that's the bruiser type of, enforcer type of guy.
Rusty Close (07:05):
Oh, huge. Hundred percent. Which fits directly in line with Christopher Cross's style of music.
Austin Padgett (07:12):
Right, yeah, absolutely.
Rusty Close (07:14):
What can you tell us about the musical stylings of Christopher Cross?
Austin Padgett (07:18):
Yeah, for those who can't tell, we're being sarcastic. Christopher Cross is known probably as one of the main figures of what is now called Yacht Rock, It’s soft rock, very smooth. A lot of times kind of headier lyrics, but a very gentle way of delivering them.
Rusty Close (07:36):
Yeah, I mean, I like to, much to the chagrin of my family, put on a little yacht rock station maybe on Sunday mornings when I'm just having some coffee and doing stuff around the house. It just really sets the right tone and puts you in the right mood.
Austin Padgett (07:49):
It's definitely a vibe, for sure.
Rusty Close (07:52):
One hundred percent. We've got Christopher Cross wearing this powder blue Earl Campbell jersey. The Midnight Special was a musical variety show. It ran for most of the seventies. I think this video is from September of 1980, which was, I think, Earl Campbell's third season. He was offensive player of the year his rookie year. He was MVP or offensive MVP his second year, and then again, offensive player of the year this year. I mean, he came into the league just on fire. You've got Christopher Cross wearing this jersey, and then for part of the performance, he's playing a double neck guitar.
Austin Padgett (08:29):
No kidding. I know he's a player, but I didn't know he would have a – I wouldn't associate him with having a double neck.
Rusty Close (08:34):
Well, we're going to get into what you would associate that with, but all of this incongruity, as you're seeing this image on screen.
Austin Padgett (08:42):
What song is he playing?
Rusty Close (08:43):
We're going to get to that. That's a big surprise.
Austin Padgett (08:46):
Okay. Okay. Don’t let me get ahead of you.
Rusty Close (08:47):
You tell me. You're the guitar expert, the guitar player. Have you ever played a double neck guitar?
Austin Padgett (08:55):
Only at a guitar store have I picked one up. They are very heavy guitars. Not all of them are going to be super heavy, but the ones particularly made by Gibson – pretty heavy. You're handling a huge chunk of wood with two necks. It's very unwieldy. Extremely, to me it was, uncomfortable. But yeah, I mean, I've played on one, and so there are several variety of them, but the most typical format you'll see is like a 12 string guitar, which has a real jangle to it because you're doubling the strings. It has some de-tuned aspect to it, plus the lower strings are octave up doubled, so you have a wide space, and that gives it a lot of jangle as well. Lots of harmonics. Plus, a regular guitar, like a six string guitar.
Rusty Close (09:40):
That's exactly, I think, my understanding of how these things are configured. 12 string on top, six string on the bottom. The Gibson, to me, is kind of the iconic one, because it's the one that Jimmy Page played. I think for most people who have a sense of this, if they're not picturing Christopher Cross, I think they're picturing Jimmy Page. He played it on Stairway to Heaven in particular. My understanding is for songs where he wanted to be able to play on part of it, it's more of a textural – you're kind of setting a tone and a feel – and that's when he's playing the 12 string portion, and then he's going to get into it and he's going to start jamming and soloing, and he's going to drop down to the six string, and he doesn't want to have to switch guitars during the course of the song. Does that sound reasonable enough?
Austin Padgett (10:31):
Yeah. I mean, so yeah, you have Don Felder from the Eagles as well with Hotel California doing that. Then I always think of Rush, in kind of early Rush, both Alex and Geddy would come out. Geddy would have a double neck guitar, one with a bass, and then one with guitar. They’re going to play Xanadu all 12 minutes or however long it is. I think they're useful for those songs where you have a distinct textural change where you need a 12 string, and maybe it's just you don't want – if you're going to buy a 12 string, why not buy this too? But I think more than anything, they look amazing. There are a few things that get people ready to run through a brick wall in this life. Just go absolutely bananas. Feel free to disagree with this, but there's a great halftime speech, there’s the teacher announcing to a classroom that Friday's a pizza party, a monster truck is three, and then number four is a guitar tech bringing out the double guitar and the guitarist putting it on, and absolutely everyone goes bananas over it.
Rusty Close (11:36):
Yeah, I mean, it is, I think we could say it's probably almost a gimmick, if not completely a gimmick. But yeah, I mean, you're going to get my attention if your tech brings out a dual neck guitar. Just for the listener's sake, and because we're a multimedia podcast, I wanted to give an example from Stairway. This is, I think, from Madison Square Garden in 1973. We got a first clip here where Page is playing the upper part, the 12 string part. This will give you a sense of that more textural part.
(12:09):
[MUSIC CLIP – “Stairway to Heaven”]
Rusty Close (12:21):
Then here's a second clip where he really jams. He starts going into the soloing part. He’s dropped down to the six-string portion of the guitar. Let's listen to that.
(12:31):
[MUSIC CLIP – “Stairway to Heaven”]
Rusty Close (12:42):
We kind of set the stage. We've got Page and his classic Gibson dual neck guitar, and now we've got Christopher Cross. He's got on his Earl Campbell jersey. He's on stage with the dual neck guitar. You asked earlier, what song is he playing? Do you even want to take a guess?
Austin Padgett (12:59):
Hold on. I mean, this is a real hard vibe that you're getting. The Campbell jersey, a double neck guitar. It's all saying, I'm not doing a yacht rock.
Rusty Close (13:09):
It's time to throw down.
Austin Padgett (13:10):
I'm going to guess he's doing some sort of cover, probably stylistically chiller, but a cover of some hard rock.
Rusty Close (13:18):
Yeah. Alright, well, let's fire up that last clip.
(13:20):
[MUSIC CLIP – “Sailing”]
Rusty Close (13:32):
Do you recognize what that clip is from?
Austin Padgett (13:35):
I do. That's off of his first album. That is "Sailing."
Rusty Close (13:38):
That is "Sailing."
Austin Padgett (13:39):
Yeah. The big hit.
Rusty Close (13:41):
He is on stage with the jersey on with the dual net guitar, and he plays “Sailing”, which is in many regards, the definitive yacht rock anthem. According to the website “Yacht or Nacht” - which if you've never been on there, it's NACHT - it's spelled like yacht. It is their 12th --
Austin Padgett (14:01):
Okay. I've got to check this out.
Rusty Close (14:02):
-ranked yacht rock song of all time.
Austin Padgett (14:05):
Oh wow, okay.
Rusty Close (14:06):
Do you care to guess what the first is?
Austin Padgett (14:08):
Oh man. Is it another Christopher Cross?
Rusty Close (14:10):
No, baby. It's “What a Fool Believes” by the Doobies.
Austin Padgett (14:13):
Oh, man. Okay. My youngest son's name is Arthur. Christopher Cross singing Arthur's Theme for the movie. My kid loves that song. I mean, it's not about him, but it's about him. You know what I’m saying?
Rusty Close (14:26):
Oh, I love it. I love it – I mean if you really want to set your seventh-grade daughter off, crank up “What a Fool Believes” in the school drop off line, and man, will the embarrassment really show through.
Austin Padgett (14:39):
Oh, I'm sure. Oh yeah, absolutely.
Rusty Close (14:40):
This has all been fun to talk about, but what it was making me think of seeing this guitar and knowing that we're the bad boys of IP, is there any sort of intellectual property related to this thing, or did anyone bother to try to protect it in any way? Just more generally, what kind of IP protection is available for guitars?
Austin Padgett (15:04):
Yeah, it's all good questions. I mean, we did our recent episode on guitar pedals. Now here we are talking about the actual guitars themselves.
Rusty Close (15:11):
The real deal. In previous episodes we've talked about patents, we've talked about trademarks and copyrights, but in the world of patents, we have utility patents. As always, we're kind of generalizing here, but they sort of cover and protect ideas. If you're the person who invents the ballpoint pen and you get a patent on that, the idea is that you get coverage on the idea and different implementations and configurations of a ballpoint pen. There are a handful of iconic utility patents that relate to guitars. Tell me if these are features that you're familiar with, but Fender’s synchronized Tremolo or Gibson's Tune-o-Matic Bridge.
Austin Padgett (16:02):
Yeah, both are still used today, so I have guitars with both of those things. Not on the same guitar, but yeah, the synchronized tremolo is what people normally call a floating tremolo system.
Rusty Close (16:13):
Yeah.
Austin Padgett (16:14):
That's why if anyone ever sees the back of an open Stratocaster, there's springs going up in the back of it. That's what that's for, is to add the tension to bring the tremolo system back to level basically.
Rusty Close (16:26):
Well, and if there's one thing we've learned about patents and utility patents is it only gives you sort of that right, that protection, to exclude others for a fixed period of time. All of these foundational guitar utility patents are old. I mean, this is stuff from the fifties and we're still using it today. They patented the stuff, but it was so good that we're still using it. At this point, most anyone can integrate it into their guitars.
Austin Padgett (16:54):
Yeah, now that I think about it, I mean, some of my Fenders have some, it's probably not a Tune-o-Matic bridge itself, but it has that concept. The Tune-o-Matic’s a really interesting one because it solves a technical problem with the guitar where the fretboard is laid out in mathematic proportions, but different strings behave differently. The low strings actually need a little more runway in length to be able to hit in tune where the intonation is supposed to happen along the fretboard. The Tune-o-Matic bridge gives little slots basically that you can adjust for each string. The higher strings, maybe you can shorten them up a little bit and the longer strings you can link them or vice versa, however you need to. As you go up the neck, you can tune a guitar open where it's tuned and strum nonsense, but as you're working the fretboard, your intonation, if you don't have it set outright, will suffer going up the fretboard. You can hit or maybe bar a cord way up high on the fret. It's going to sound more out of tune because of this. It's a mathematical problem of the fret. That Tune-o-Matic bridge is trying to help you make those micro adjustments to make it more in tune.
Rusty Close (18:01):
We established before that our guitar gear heads are basic entry level electrical engineers, but also mathematicians apparently.
Austin Padgett (18:10):
Right and mechanical engineers are just general tinkers. Nothing's ever good enough. That’s the problem: it's never enough.
Rusty Close (18:16):
But it sounds like with these sort of innovations, even from the fifties, it's kind of like the mouse trap, right? I mean, there's no need to build a better one because the one they came up with, whatever that is, 75 years ago, it works fine. It still works fine to this day, and there's probably not a better way to do it.
Austin Padgett (18:34):
That is the interesting thing about guitars is that most of the big problems were identified and solved between 1940 and 1960. That it's like, okay, there's a hum in the line when we have single coil pickups, what are we going to do? We're going to buck them, so we have humbuckers that are designed to get rid of a certain level of hum that's persistent in other types, and so they still wind them. The general configuration is essentially the same, of course, micro innovations here and there to perfect upon it. But yeah, I mean, we still call them humbuckers.
Rusty Close (19:07):
Yeah. Well, and a lot of what we talk about is kind of like, what should my IP strategy be? Part of the thing, we talked about this a lot in the Cooler Wars. If you've got a consumer good like a guitar, there are certain steps you can take early on, certain patents you can go after, but you have to be strategic. You have to be cognizant of your resources and what you want to do. You don't always know that that product is going to become iconic. A lot of the guitars that we see today are from the fifties, and they are iconic to this day. I mean, if it's the Les Paul, the Stratocaster, the Telecaster, I mean, I think those all came out in the early fifties.
What do you do to protect them? You almost find yourself doing stuff after the fact. Part of what we talked about in the Cooler Wars episode was design patents and trade dress. We didn't necessarily get down in the weeds on the nuances between the two, but I think guitars in particular give us a good opportunity to get into the nuances and the differences between the two and what they're intended to cover and why there's not as much overlap as there might seem to be on the face. If we start with design patents, well, design patents are meant to cover an object's ornamental appearance. If we think about the body shape of those guitars, even dumb me who can't play any of them, I know what a Gibson SG looks like. I know what a Stratocaster looks like.
I know what a Les Paul looks like. I know what a Flying V looks like, and I think all of them had design patents for a period of time. But just like the utility patents, those go away. They only last for a period of time. Then, okay, now these are available for everyone else to use. But we also talked about this notion of trade dress, and okay, well, let's think about this. Design patents expire over time. Trade dress falls under trademark law and in theory can last forever. If we think, okay, well how can this help us out? If trade dress covers the characteristics of the visual appearance of a product that signify the source of the product to consumers, well, again, if I see an SG, I know the source of that. It's Gibson. If I see a Stratocaster, I know that's a Fender. It seems like–
Austin Padgett (21:48):
Yeah, jumping in real quick– you know that now. If they came out with, if it was 1950 and you saw the first Telecaster, you wouldn't know that right out of the gate. That's part of it. That the source origin of the shape has to build itself over time, either through marketing or widespread prevalence. Those are really the two, word of mouth, all those sorts of things that you measure by. But it has to acquire distinctiveness, basically. For trade dress, that's usually what you're looking for is something that's acquired that level of distinctiveness so when people see the telecaster, they're like, I know that shape. That's a Fender.
Rusty Close (22:29):
Right, and I think we'll get into this a little bit below because I've always had this notion that it's kind of an “after the fact” strategy that you try to protect your trade dress. I think that goes because, well, it is after the fact because it's built up that recognition over time. But some of the trade, I don't know, do you call them trade dress registrations or is it just trademark registrations? But they're filed in 1970, but the first use is in 1952. It is, in some ways after the fact, but it necessarily needs to be that way in some cases.
Austin Padgett (23:02):
Yeah. Yeah. Because when you file at first, the Trademark Office is going to say, that has some problems. It's either functional or how are you telling me that the shape of this lamp – let's say we're in lamp world – how is the consumer supposed to know that this isn't just decorative, that this signals to me who made this lamp and the quality that you should expect when you buy this lamp?
Rusty Close (23:25):
It's almost, you can imagine that about the point in time that the design patent expires, you would've built up enough sort of recognition of what it is that you could then pursue the trade dress.
Austin Padgett (23:38):
Yeah.
Rusty Close (23:38):
But there's a problem when it comes to the, you've got a design patent on the body shape, but talk to me about why it's a problem to pursue trade dress on the body shape.
Austin Padgett (23:51):
The worst problem for you is probably the functionality problem.
Rusty Close (23:54):
Right?
Austin Padgett (23:55):
I love my Strat. It's the first electric guitar I ever bought, and I love it because it's so comfortable. It looks awesome too, but it is the most comfortable guitar for me to play, right? It's contoured at the bottom. The way it pushes upon your belly basically is very comfortable, and it has a carved – it's contoured for your forearm to sit across the top of it, so it feels light and it feels very nice to play, particularly compared to some of the other brands that are heavier and have their own pros and cons and stuff like that. But for me, the Strat, because I've had it so long, just feels like my guitar. I mean, it feels like a part of me, right? There's a problem with if you start talking about the shape of it, okay, well, that contour on the back is for my forearm to rest easy against.
It might look cool and help make the symmetric shape of it or whatever, but it has a functionality issue to it. I think the other problem for probably the guitar body itself is that these are chunks of wood, and particularly these days, I can just dial it up on my wood cutting machine. Take a look at this, cut me one of those. They're easily replicated, and if you don't keep a handle on it, that item that we were talking about, the acquired distinctiveness, well that goes out the door if there are a bunch of other people doing it. All of a sudden, okay, we spent a lot of money here to try to tell people that, okay, this is what our product looks like and what they should expect it to look like and what they should look for when they're looking for a guitar. Well, if they go to the guitar shop and there are a thousand other guitars and they're not all made by me, and they look very, very similar, all of a sudden that distinctiveness is at least limited, if not entirely ruined. You have the two prongs are potential problems: you have functionality, and has it acquired and maintained its distinctiveness?
Rusty Close (25:53):
I think the functionality part is really where I wanted to start because the design patent doesn't care. If the functionality led you to a certain design, that's fine from the Patent Office's perspective, but it seems that if functionality played into your design, how you came about your shape, then from a Trademark Office perspective, that's a problem for you.
Austin Padgett (26:22):
It goes back to kind of the patent is the so-called limited monopoly where trademarks, as you mentioned, potentially unlimited, as long as you're using the trade dress and you've hit those prongs, it can last as long as you use it.
Rusty Close (26:35):
You mentioned on the Stratocaster, the shape, it's got the place to rest your forearm, but with other guitars you've got – like on the SG, you've got the double cutouts up at the neck, which I assume plays some role in the playability and the access to certain frets and things of that nature, right?
Austin Padgett (26:57):
For sure. Yeah. I mean, it looks like the devil, but it looks, I mean, it looks so cool, but yeah, for sure. I mean, having a single cutaway is great, but if you can get your entire hand easily to 14th fret, you're doing very well because you have unlimited possibility then.
Rusty Close (27:13):
You've got this sort of tension where you're trying, okay, well, goodness gracious, we had design patents. Well, that only lasts so long, but we did design it this way for certain reasons, and now we can't have trade dress that protects it. I assume if they tried to pursue trade dress protection, they've got marketing. They've got all of this stuff that's probably going to work against them, where the examiner or whoever's looking at the application is going to say, well, yeah, but you said it's got these cutouts for these reasons, it's got this shape for this reason.
Austin Padgett (27:49):
Particularly if there's any utility patents on any parts of it, that plays against you as well because that goes to per se functionality. You've essentially admitted that there's functionality around it. That comes up for some of our clients, not in this space, but it comes up for some of our clients sometimes where they're like, wow, our utility patent's running out. Can we stretch this into something else? The fact that it's a utility patent, the examiner will probably actually find it, and that's going to be an issue for us.
Rusty Close (28:17):
Again, it goes back to my notion of this always seems to come up as a “after the fact” way of trying to extend protection. Think about how do we string this along? Well, so if we can't get trade dress protection, at least in theory, on the body design, can you talk to us about where the manufacturers have gone to try to get that indication of source?
Austin Padgett (28:41):
Yeah, so usually what you see is up at the headstock.
Rusty Close (28:44):
Okay.
Austin Padgett (28:45):
That's a lot of times where the maker's name and brand and logo are displayed. But not only that, the actual stylization of the headstock. When I look on stage and I see someone playing a Strat style guitar, let's say, but I'm not sure if it's a Fender Stratocaster or not. If I look and I see the scrolled head, I know it's almost certainly a Fender Strat because that's their headstock. There are a few iterations of it, like the Jimi Hendrix had this fat kind of roll, and it looks very cool. Or there are other makers like Paul Reed Smith, theirs comes, and it's not six inline tuners, typically it's three on one side, three on the other, and kind of has this arched-in shape to it. But if you just started filming down at the body of the guitar, I don't know that I could tell you right off the bat who made it.
Rusty Close (29:41):
Right.
Austin Padgett (29:41):
So yeah, it's usually not until I get up to the headstock that I can – that's usually where I'm looking to try to see, particularly if I'm chasing tone, I'm like, oh, I've got to have that guitar.
Rusty Close (29:51):
You can't see their pedals, so you at least got to identify the guitar.
Austin Padgett (29:53):
Exactly. Yeah. I'm going to look at the headstock first, actually probably, and I should mention for the people who don't know the headstock is if you're looking at a guitar and setting it down, it's the very top of the guitar where all the tuners are on most guitars. The strings come up from the body to that.
Rusty Close (30:11):
As far as you know, I mean, it sounds like it because it's what you are looking for even in 2025. I'm imagining that companies have had pretty good success, at least boxing people out, in a way, so that consumers who know what they're looking for are able to still say, okay, that's the real deal, or that's a Gibson, that's a vendor, that's this, that and the other.
Austin Padgett (30:35):
Yeah. My understanding is that a lot of this came to the head in the 1970s when the big American manufacturers were – a lot of their quality was slipping. There were some changes being made to cut costs and increased profits on the guitars, and particularly Japanese companies were starting to come in with some very good guitars in comparison at a much better price point. There was a lawsuit about it. It settled. My understanding is that the settlement and from what the market shows, the settlement more or less says, well, the bodies are the bodies, and there's not much we can do about that. But the headstock, particularly the logos and the headstock and that type of indicia outside of the body are things that you have to stay away from. You have to come up with your own thing there.
Rusty Close (31:26):
Again, the headstock, at least in theory, it doesn't have any functionality. I mean, it seems that even if those Japanese companies, or whoever the not Gibson, not Fender manufacturers are, could build something that is in effect, identical in the tone, the way it plays, all of those things, but you at least indicate to the consumers that it is something different just by the headstock.
Austin Padgett (31:54):
Right. Yeah, for sure. I mean, and have to watch out too. Now, these days, headstocks are used for, a lot of times people now put a tuner on it. They're tuning devices that you can put on your headstock that feel the vibrations from the guitar, and that's how you tune your guitar. If you were to say, look for the extended headstock where you can easily – because some, like my Telecaster, it wasn't built when these things existed, so it has very little room to try to squeeze in one of those tuners if I'm going to use it. But let's say somebody came in with a Telecaster type style of guitar, but they said, we included a larger headstock just so you can make sure that you get your tuner on there. All of a sudden you've got a functionality problem, and you're saying that it's functional. You might say, well, we have some protection over this headstock. We're going to keep people from doing this extended thing, and all of a sudden, because you said it's functional, now you've got a problem. A lot of it is not only what you do, but what you say about your product as well.
Rusty Close (32:51):
Yeah, that makes perfect sense. I mentioned earlier a couple of times that kind of going back in time, but one thing I found was that Gibson's dove wing headstock, they filed that registration in 1974, but they claimed a first use back in 1922.
Austin Padgett (33:07):
Do they call it dove wing? Is that what they call it?
Rusty Close (33:09):
That was one that I found.
Austin Padgett (33:11):
I always think of them as the open book.
Rusty Close (33:14):
Yeah, I think this one's different.
Austin Padgett (33:16):
Dove wing, I'll have to look it up.
Rusty Close (33:17):
Yeah, the open book or the mustache or something like that.
Austin Padgett (33:19):
Interesting.
Rusty Close (33:20):
In terms of our takeaways, what can we learn from this? What can we strategize based on what we know? Again, with consumer goods, there's these several different levers that we can pull. We've got trademarks and copyrights, not really the focus of this episode, but just like in the Cooler Wars, it's utility patents, design patents and trade dress. But it's just hard to know as you're bringing products to market, what are the right things to be doing? How is the best way to allocate your resources at that time? I think just being aware that these things are out there can kind of help you maybe work backwards if you need to be careful about the way you're marketing things of that nature.
Austin Padgett (34:04):
For sure. Particularly if you're going to come up with this concept of trade dress, the earlier you can do that – and it's not impossible, but it's tougher from the attorney perspective when you're coming in much later, because there may be other products out there that can limit your ability to actually really quantify what it is that you're claiming ownership over. If you can early on make that assessment, then you can have some sort of enforcement strategy and say, okay, these are the three things that are really, we think we can get protection over, but we can only get protection over it if we remain pretty much the sole provider of those three things. We know our enforcement strategy, we're going to get A, B, and C, and anything that has those items or a mix of them we've got to go after so we can keep them off the market and be aggressive about those things. The other things we can pick and choose, so you're not spending a fortune and making a constitutional case out of every little thing. You can really get thoughtful about it earlier on. You may not know everything at that point. That's the problem. You have some limitations, and you may need to be flexible, but it's much easier to be successful in that path. It may require more effort.
Rusty Close (35:16):
No, that makes sense. Yeah. Diligence and just staying on top of things, I think as much as anything, and if we go back to the instrument that brought us here, Christopher Cross's custom made Fender dual neck guitar, and whether there was any IP protection, I mean, as far as I could find, no. When we look at the Gibson that Jimmy Page played, I think they relied on some of the body shape stuff, but I think those, it is an SG, at least you can squint and see it, but those had all expired by then. Then you think about, well, I mean, at least it seemed innovative, but maybe it's just putting two guitars and chopping 'em and putting together, and maybe they just figured, look, there's never going to be a big enough market for something like this niche product that it's worth seeking to protect it in that way.
Austin Padgett (36:05):
I love it. Yeah. Well, we'll have to figure out how to do more guitar episodes. I mean, in all honesty. We'll find some angle to get it all in.
Rusty Close (36:13):
Hopefully we haven't exhausted 'em all yet. If you want, I went online today. You can get the Gibson, it's going to set you back $10K, but I mean, it can arrive in a week or two. I think there's still mass producing that to a certain extent.
Austin Padgett (36:27):
Either that or a Klon pedal or somehow convince my wife that 20 grand is worth – I'll work on it in the background. So yeah.
Rusty Close (36:35):
Yeah, yeah, yeah. Think that through.
Austin Padgett (36:37):
Yeah. Thanks everyone for listening and be sure to like and subscribe. If you would, give us a five-star rating to help everyone know what we're up to here. And remember, if you get caught between the moon and New York City, there's always No Infringement Intended.
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