So why not license the shape then? They could do a royalty with those deemed of quality and deny a license to those that are of lower quality and then sue them if they don't use the design. This would allow them to manage quality with lower reputational harm.
Because - until it makes its way through the courts - it’s not established that Fender has the rights to claim ownership of on the shape in the first place.
In the US, there’s three routes for that - design patent, trade dress and artistic copyright. AFAIK they don’t have a design patent. Trade dress is hard to prove association - would most people on the street say “yep, that’s 100% a Stratocaster” if they say the outline? Probably not. The shape isn’t separate from the functionality so artistic copyright hasn’t upheld either. The fact that Fender has not successfully enforced copyright concerns for over 70 years is also a sign that they never had IP protection on the shape.
In the US, I'm pretty sure they have no protection. They lost a US case to establish a trademark in 2009 [1] (2009 article title says copyright, but text is about a trademark suit). A design patent would have expired, unless it was filed in 1954 and was pending until recently or is still pending... US patents filed before 1995 don't start their validity period until issuance, but that'd be a big stretch.
It's possible there's a US copyright claim, but on a 1954 design, you would have to have registered it, marked the works with the copyright (on at least most of the copies), and timely renewed. There's also, IMHO, a solid question of if US copyright applies to the shape of a guitar. If they had a strong case, I think they would have tried to enforce on it in 2009 when they tried to enforce on trademark.
There’s a story, possibly apocryphal, that the first electric guitar demo was a bunch of strings nailed to some basic lumber and it received a negative reception. The designer went home, tore apart his acoustic guitar and mounted the electronics inside. The sound was not changed by this. The critical reception however was much improved. And the rest is history.
The shape might not be purely functional—and that seems to be the basis for their attempted lawsuit.
The "log" (generally dated to 1941) is the railroad sleeper ("tie" for Americans?) with wings made in the Epiphone factory in Manhattan attached to the side, and is in the Country Music Hall of Fame in Nashville. This is the guitar that Gibson turned down until Fender and Bigsby (via Merle Travis) popularized the solid body guitar.
The predecessor was a single string on a piece of actual rail and two spikes, amplified by a telephone receiver in the mid-late 1920s.
well, in the US, those shapes were ruled public domain.
in Germany, Fender recently won a default ruling because a chinese counterfeiter didn't even show up in court, and they're now using that to go after anyone selling in the EU, even though that's not really what that case win means. But private equity is going to private equity.
They'd have to do something more complex like licensing the shape + name at the same time, since they do own "Stratocaster". Not sure how big of a demand there is for the name though, or if Fender was even interested in licensing that part.
Fender does this with their headstock design for replacement necks only. However they forbid license-holding manufacturers from both selling a complete guitar with a Fender headstock shape and even showing the guitar neck on a finished guitar during the sale process.
