Fender Is a Poor Custodian of the Stratocaster’s Legacy

Any great design gets copied eventually, right? Fender wants to have things both ways with the Stratocaster: they want to tightly control who can copy them them while benefitting from the fact that they are influential and widely-copied.

They've never made Stratocasters for all players (including most famously John Mayer). At times, such as during their 2002 acquisition of Jackson/Charvel, they've acknowledged that other brands are capable of making innovative S-style guitars that appeal to players outside their traditional customer base (Another example of this is their Tom Morello "Arm the Homeless Guitar"—which they noticeably do not call a Strat). They seem to acknowledge that Stratocaster-influenced guitars made by independent builders have left their mark on music history, but with their recent cease-and-desist campaign that is now confirmed to target PRS, they no longer seem to tolerate an important part of the culture that made the Strat great.

Did Lawyers Sell Fender a War?

The approach of Fender's law firm Bird & Bird strikes me (not a lawyer) as simultaneously clever and transparently self-serving. While Fender has encountered limits with US trademark law in the past, Bird & Bird secured a "win" for them in March (by default) focusing on German/EU copyright law instead (as they brag about in an article on their site). Against whom did they achieve this? The answer is "a China-based manufacturer and seller of electric guitars, on the global online retail platform AliExpress, including for shipment into Germany." It doesn't take a law degree to see that Fender's legal counsel chose a defendant highly unlikely to show up to the Regional Court of Düsseldorf.

Did Bird & Bird do this to establish a durable precedent to help Fender win future cases? That doesn't really seem like the real explanation to me. Germany's legal system, in contrast with a common law system that American readers are likely more familiar with, uses civil law and prioritizes application of code over adherence to precedent. Indeed, Bird & Bird doesn't claim that their "landmark" ruling creates precedent out of nowhere in their press release, stating "The ruling aligns with a growing body of EU and German case law." It does at least seem to confirm they can use the German courts for what they're trying to do, though. I think a better explanation is that perhaps Bird & Bird see the press releases and the C&D campaign as the main products (rather than any real legal outcome). Since the case gave Fender and Bird & Bird material for press releases and seems to have convinced Fender to continue with a large-scale war, I suggest it has already served its purpose.

Furthermore, the fact-finding role of judges in the German system seems like a headwind against Fender in an eventual lawsuit against PRS. The facts of that case will be different that the facts of the case they already "won" against the Chinese copy. And as we are seeing, you can't take everything Fender says at face value. In fact, as reported by Guitar World, Fender may have misrepresented facts to the court in Düsseldorf already by claiming that Leo Fender was the sole designer of the Stratocaster.

While we can't know for certain just how eager for war Fender was when they approached Bird & Bird, the incentives of the two parties differ drastically. Who benefits from a broadly scoped war? Bird & Bird does, more so than Fender who presumably want to earn a return on the money they spend. It must be nice to be able to profit from problems you create/enable.

Even if Bird & Bird has found new legal leverage for Fender in defending the design of the Stratocaster, it's obvious there has been a PR cost to this. I think the transparent bullying tactics of the legal strategy have rubbed people the wrong way. Fender is aggressively using its access to foreign courts and lawyers to go after all sorts of brands, including independent guitar makers in the US. And the durability of the so-called "landmark ruling" is blatantly questionable.

In many professions, there is a risk of "hammer and nail syndrome." If you are in the business of selling the hours of German IP lawyers, you're naturally going to be biased towards offering advice that sees German courts as the solution to your clients' problems. And if the risk of hitting a nail is that you have to keep hitting more, the client needs to know that. Did Bird & Bird inform Fender adequately of the risks and costs of the approach? Largely, they are incentivized to not model the full costs to Fender. Also, I think it's important to consider Fender's greater approach of selling the Stratocaster largely on nostalgia. Their relationships with players (which were already complicated before this) are a long-term asset that Fender seems to have largely torched in a matter of weeks. Did both Fender and Bird & Bird think this would all blow over quickly? If so, hopefully this ends up going down in the history books as a grave miscalculation.

Fender keeps trying to claim that their actions are "targeted enforcement," both in their statement about the ruling and in further statements obtained by Guitar World. This seems highly dubious; their actions so far have mainly established that they can broadly use the Regional Court of Düsseldorf to go after guitar makers that range from brands like PRS to family-owned LsL Instruments. Pay attention to how Fender (along with their legal counsel) acts, not to what they say.

I think the timing is also curious given that Fender announced the appointment of a new CEO Bud Cole in January. Who initiated the engagement with Bird & Bird? Did Cole inherit a war or seek one out? "Evil greedy Fender" is not a monolithic entity.

When you earn revenues from selling guitars at Fender's scale, some amount of spending on legal consulting around your IP is a reasonable cost of doing business. But weaponizing that can be an existential threat to independent businesses that don't have the resources for fighting Fender OR bending to their excessive demands. Litigation is expensive, and it's expensive even to have someone give you real legal advice about your exposure. For this reason, I recommend against buying instruments from Fender even though I've had a great experience with my own Charvel So-Cals and my Jackson; I don't want my money to fund lawyers that aggressively fight small, independent brands.

At the same time, selling any guitars you have a connection with seems excessive to me!

Overall, it appears Fender and Bird & Bird have been overstating the strength of any new legal precedent and understating the breadth of their legal campaign. Even if they secure subsequent wins, this whole boondoggle has a huge reputational cost to overcome. And the legal coverage of this I've seen has not been positive on Fender's approach; the Blues Lawyer Youtube channel argues that it was pretty stupid of Fender to drag PRS into this (even though he predicted it from a past video). I guess short-term incentives won out over better judgement.

What does it mean to be authentically 'Fender?'

In Fender's press release (linked previously), CEO Bud Cole attempts to sell the Regional Court of Düsseldorf's ruling to players by appealing to authenticity, stating "This decision reinforces the value of originality and ensures that the authenticity players associate with Fender continues for generations to come."

Fender loves to wrap itself in this aura of authenticity, but at some point, we have to ask "authentic to what?" Authentic to a tiered product ladder and a legal strategy designed to extract as much lifetime value as possible for private equity?

When guitarists choose another brand of S-style guitar over a Stratocaster, the decision very often comes from real playability concerns rather than some vain desire to ruin the Strat. For example, I don't like Fender's necks and prefer something that I can play with less wrist pain. People have their reasons (control knob layouts are another for many), and Fender should try to understand players' needs and dreams rather than dismissing them.

I like when Fender invests in guitar brands like Charvel and Jackson. I hate when they try to suppress instruments that they wouldn't be willing to create as "Stratocasters." To many, Super Strats and now the Silver Sky are as much a part of music history as the Stratocaster itself.

This whole legal drama risks becoming a massive rent-collecting drag on the entire guitar industry. We have to say "shame on Fender" for initiating it even though Bird & Bird's part seems condemnable too.

Imagine if Fender spent the money R&Ding new Stratocaster variants/features instead of lighting it on fire with attorneys.

Fender, try to make the best Strat on the planet. Don't strangle it out of existence because you wanted to stay stuck in the past. When you choke the ecosystem, it lowers the value of the Stratocaster as a modular platform in a competitive market. Don't stand in the way of the future of guitar.

Thanks for reading!