The DiMarzio trademark is on the cream/black combination, not just the cream color. Nobody could get a defensible trademark on cream or white alone because Fender was doing those in the 1950s.
No, the Dimarzio trademark is on the double-cream color. No zebra involved.
Reading the post, Wolfe isn't suing anyone, we was just contributing to the fund. I couldn't see Wolfe sticking out his own neck, for some of us who have been around long enough...he has no reputation/respect/sympathy left to lose.
BTW, Coke has won cases over their trademark shade of red.
In Coke's case, red is not a "fucntional" color.
You are correct. I am not the person being sued. Dimarzio is suing a competitor of mine. However, I certainly WOULD stick my neck out, and I am. I am putting a target on my back for Dimarzio by spearheading this.
I'm confused by the reputation/respect/sympathy comment though.
A little bit about the research I've done on this over the last 18 years.. Over the last years, I've worked closely with Cathy Duncan at SD on this, as well.
It started with a conversation with Bill Lawrence, when he said 'you cannot trademark a function" -- and I was confused by that, until I started reading about
"aesthetic functionality doctrine" and discovered that, yes,aesthetics can be "functional" in a manner of speaking.
You should read the links I've placed in here. If you do, then you will KNOW without a doubt.
A coupe examples:
In 2005,
Dimario attempted to trademark another color - basically a chrome plated bobbin. USPTO refused the registration, because guitars have chromed hardware, and some have mirrored pickguards.
In the 1980's John Deere
tried to sue a company called Farmhand for making green loaders and accessories. Courts discovered that farmers wanted to color-coordinate equipment. If Farmhand could not coordinate with Deere, Farmhand would have no place in the market. John Deere lost. Recently,
Deere started suit with Fimco for the same issue.
In the 1990's, Mercury Brunswick, makers of outboard boat motors, tried to trademark Black. Courts said "NO" --black is a harmonious color with ever other color, and appears smaller when mounted on the boat.
The color blue was found not registerable for ice-cream containers.
It was psychologically suggestive that the contents were colder.
We all know that many guitars have cream binding, cream pickguards, etc. We know that guitar players are very aesthetically minded when it comes to their instruments. Any we know the oldmyth of the double-crream1959 PAF soundingbetter than other PAFs.
We also know that there are a very few colors that are "commonly accepted" by guitar players. The basic four: Black, Zebra, Cream, and White. Would you put a hot pink humbuckeron a gold top Les Paul? Probably not... but think about it... what looks best in that guitar? Cream, usually. or nickel covers.
Trademark law also dictates that you cannot register a mark that affect the cost or ease of manufacture. I know for a
fact that Dimarzio paid less for
cream bobbins when the mark was registered.
And I can tell you that winding plain enamel on cream is easier, due to the contrast in colors.
Trademark law is here to help competition, not to stifle it. if a mark such as this would significantly impact competitors in the marketplace, or put them at a severe disadvantage, then it is "functional"
Want to know jut how much a disadvantage? Think about this.. I average 4-6 requests for cream every week. If we suppose 10 HB's per week, 520 per year, that's about $67,000 in additional sales. That's an employee or two, that's magazine advertisement, custom tooling and parts, and the overall ability to grow and expand in the marketplace. In 40 years, how many large companies have broken out of being "small?" Of course, you have the main two - Duncan and Dimarzio..because they were the first..... and EMG, but they're active. How many other large companies? Well... Lollar is getting there. So basically, you have just ONE manufacturer who has broken out of the smallness factor.
That's how much of a disadvantage it give us.
In a recent suit over red shoe soles, Christian Louboutin was severely limited as to the scope of his trademark,..
The appellate court held that the doctrine of aesthetic functionality is a valid defense in the Second Circuit in cases “where protection of the mark significantly undermines competitors’ ability to compete in the relevant market” (emphasis in original). A mark is aesthetically functional if granting exclusive protection to the feature “would put competitors at a significant non-reputation-related disadvantage,” citing TrafFix Devices, Inc. v. Marketing Displays, Inc., 532 U.S. 23, 32-33 (2001).
Additional reading? I invite you to read the McCarthy pdf files and law reviews on trademarks located here:
www.wolfetone.com/trademark
If you have any questions, feel free to ask.
Good to have someone who does know something.
