Copyright, Trademark, and the New Fault Line for Guitar Design

When I look at the Fender result out of Düsseldorf, I see a sharp reminder that copyright and trademark do different jobs, and that builders get into trouble when they talk about product shape as if all intellectual property rights work the same way.

Fender’s March 9, 2026 release framed the decision as German and EU copyright protection for the Stratocaster body design, with enforceable consequences for guitars using that body shape that are manufactured, sold, or distributed into Germany or the rest of the EU. The Court of Justice of the European Union had already signaled, in Mio and konektra, that utilitarian objects are subject to the same copyright requirements as other subject matter. (Fender Spotlight)

Copyright is about authorship and original expression. Trademark is about source identification in the marketplace. Those are not interchangeable concepts, and confusing them is where a lot of bad analysis begins.

In the United States, the Copyright Office explains that copyright protects original works of authorship once they are fixed, while the term for most modern works is generally life of the author plus seventy years.

Trademark works differently. The USPTO states that a federal trademark registration can last indefinitely, so long as the mark remains in use and the owner files the required maintenance documents. That difference matters because copyright asks whether something reflects protectable authorship, while trademark asks whether buyers treat something as a badge of source. (U.S. Copyright Office) (USPTO)

That distinction becomes especially important with product shape. In U.S. trademark law, product design is not treated the same way as a word mark or logo.

In Wal-Mart v. Samara Brothers, the Supreme Court held that product design is protectable only upon a showing of secondary meaning. In other words, the claimant has to show that consumers primarily understand the design as indicating source, not just as the product’s look.

The 2009 TTAB Fender case applied that logic to Fender’s body-shape applications and made the point even more directly: product configurations are not inherently distinctive, may only be registered upon a showing of acquired distinctiveness, and Fender’s applied-for guitar outlines were found generic and not shown to have acquired distinctiveness. (Justia Law) (TTABVUE)

That U.S. case is the closest real American equivalent, and it is also why the German result feels so different.

In the United States, Fender’s fight over the Strat, Tele, and Precision-style outlines was fundamentally a trade dress and trademark problem. The question was whether the shapes, standing alone, told consumers this comes from Fender. The TTAB said no, in part because decades of third-party use had diluted that source-signaling function.

In Germany and the EU, at least in the March 2026 Fender framing and in the post-Mio environment, the question is different. The issue is not primarily whether the body shape tells consumers who made the guitar. The issue is whether the design qualifies as protectable applied art and whether the allegedly infringing product took protected expression. That is a different legal inquiry, and it leads to different legal risks. (Fender Spotlight)

That is the real fault line between copyright and trademark in this space. Trademark can potentially last indefinitely, but it is demanding when the claimed subject is product design. You need marketplace recognition. You need source significance. You also run straight into the functionality doctrine, which prevents trademark law from being used to monopolize features competitors need to use.

Copyright, by contrast, does not ask whether consumers have learned to treat the shape as a brand signal. It asks whether there is protectable authorship there in the first place. That is why the same guitar silhouette can fail under one theory and still become dangerous under another, depending on the jurisdiction and the right being asserted. (USPTO) (Justia Law)

The American copyright side is harder for a body-shape claim, and this is where a lot of commentary tends to get sloppy.

The U.S. Copyright Office says a useful article is an object with an intrinsic utilitarian function, and that copyright does not protect the mechanical or utilitarian aspects of such works. The Office further explains that separable pictorial, graphic, or sculptural authorship may be protected, but that the design of the useful article itself generally is not.

The Supreme Court in Star Athletica likewise emphasized that separability analysis applies to pictorial, graphic, or sculptural features incorporated into a useful article. That does not make copyright protection impossible in the United States, but it does make the path narrower and more fact-specific. As a practical matter, a claim to the entire guitar body shape would face a steeper and more structurally skeptical path in the United States than the one Fender just used in Germany. (U.S. Copyright Office)

What makes the EU position more consequential going forward is that the recent CJEU cases are not just about one domestic market.

In Kwantum, the Court said Member States are required to protect works of art in the European Union irrespective of the country of origin of those works or the nationality of their author. Read together with Mio and konektra, the direction of travel is clear. Works of applied art are not being treated as some lesser category, and non-EU origin does not keep them outside the system. That means builders in the United States, Asia, Latin America, and elsewhere cannot assume that looser home-market expectations will travel safely into Europe. (curia)

There is, however, an important caution built into the Düsseldorf result. Public reporting on the ruling indicates that it was entered as a default judgment. That matters. A default judgment can still be legally significant, but it does not carry the same weight as a fully contested appellate decision where both sides litigated the boundaries of protection. So the right takeaway is not that every S-style guitar is suddenly unlawful in Europe. The better takeaway is that near-identical copying is now sitting in a more dangerous legal environment, especially where copyright in applied art is being taken more seriously. (Fender Spotlight)

For other builders internationally, that is where the practical consequences begin. If you sell direct into the EU, use EU dealers, list on marketplaces that ship into the EU, or build around silhouettes that are intentionally very close to legacy forms, you are now operating in a landscape where applied-art copyright arguments may carry more force than many builders have assumed.

The compliance lesson is clear your designs market by market, stop assuming that everybody does it is a legal strategy, stop assuming that surviving in the U.S. automatically means surviving in Europe. It may not. (Fender Spotlight)

My own read of the future is that the easy cases will be obvious copies, but the hard cases will sit in the middle. They will involve instruments that are not one-to-one replicas, yet still borrow enough of a protected visual grammar to invite a claim.

In the United States, those disputes will continue to run into secondary meaning, genericness, functionality, and useful-article limits. In the EU, the pressure point is increasingly whether the object embodies protectable creative choices and whether those choices were carried over into the accused design.

Builders who understand that split early will make better products and take fewer legal risks. The safest long-term move is also the best creative move, which is to build something recognizably yours before the market or a court forces the issue. (Justia Law) (curia)

-Ricky