DiMarzio is sueing Sheptone over double-creme

[rjb]

Consolation Prize- A Smoking Cap Gun?

I have noticed a couple of dings in DiM’s armor. Not chinks- but dings.
Nothing that would support a legal action- but perhaps worth mention if threatened with one.

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POOR TRADEMARK MANAGEMENT - FAILURE TO PROVIDE NOTICE OF CLAIM

Trademark Aesthetic Functionality: A Zombie Apocalypse?

Failing to Use the Purported Mark as Source Identifier
In many cases where trademarks were invalidated due to aesthetic functionality, the owners of purported trademarks failed to follow the most elementary of practices necessary to protect their trademarks, such as failing to use the TM symbol to provide notice of its trademark claim, not placing the purported mark on packaging, tags, or labeling, not using written notices on packaging that identify and claim ownership of the trademark, and failing to highlight the claimed trademark in advertising. If the purported trademark is not immediately obvious to the consumer as a source identifier, the failure of the owner to educate the consumer of its source identifying significance can be fatal.

As has been noted, DiMarzio’s “standard” color for humbuckers is black (although black, cream, and black/cream humbuckers are equally available at the same price).
That fact alone doesn’t invalidate the “double cream” trademark.
(Actually, DiMarzio has always sold at least some black pickups.)

The List Price for DiMarzio® full-size humbuckers applies to black, cream and black/cream only.
All other colors and color combinations on full-size humbuckers have a $10 higher List Price.

The fact that DiMarzio sells humbuckers in colors other than “double cream” does not weaken the mark.

It does seem to me the fact that DiMarzio does not provide notice of the “double cream” mark would weaken that mark. But DiM’s lawyers are smart enough to know this, and don’t seem to be concerned….

Check out this page from DiM’s site: Super Distortion®
Note the “Super Distortion®” designation in the title.
Now go down to color options.
Hover over the last two selections: Chrome Top™ and Gold Top™
Now hover over the second color choice: Cream
Not Cream™. Not Cream (see note). Just Cream.
Search the page for a notification like “The double cream configuration is a registered trademark of DiMarzio Inc.” There is none.

It seems a bit curious.
You can’t go anywhere on DiMarzio’s site without tripping over the ®s and ™ s.
But try to find a sign of the “double cream” mark. It’s nowhere to be found.

I’m sure DiM’s lawyers haven’t overlooked this fact.
Maybe they are relying on the mark’s “incontestable” status.

Maybe they are depending on guitar board gripe sessions to maintain the mark’s continued “secondary meaning”! Surely, anyone surreptitiously seeking “double cream” pickups knows about the trademark. Even if “double cream” is associated with DiMarzio in the same way the swastika is associated with the Nazi party, secondary meaning has been established.

Just out of curiosity, has anyone ever asked DiMarzio why they do not use the ™ symbol or written notices to identify and claim ownership of the “double cream configuration” mark on their website? (I don’t know if this is true for packaging or advertising.)

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A CURIOUS CONTRADICTION:
CREAM ISN’T WHITE, BUT WHITE IS CREAM

Excerpts from an affidavit which was part of DiMarzio’s trademark application:

To my knowledge, the pickup bobbins under the covers in the Les Paul guitars were always either black or a black-like navy blue, with the exception of a very short period in 1959, when some bobbins may have been white.

This short run of bobbins in the Les Paul guitar would appear to be involved with an accident of a shortage of pigment, since such bobbins only had that color for a short time and for a short time some of the white bobbins in double bobbin Les Paul pickups were even combined with black bobbins.

The cream color is specially compounded for the applicant.

The cream color of the configuration of the present application is a distinctive cream color, as distinguished from an ordinary white or colorless bobbin, which would be referred to as ivory.

But, what's this?

1:13: "There are only 1700 of these guitars made, and very few with double cream and black and cream pickups."

There seems to be some confusion here.

In the affidavit, DiMarzio says some 1959 Gibson bobbins were white or colorless. He says his trademarked bobbins are a distinctive cream color “as distinguished from an ordinary white or colorless bobbin, which would be referred to as ivory”.

In the video, DiMarzio refers to the Gibson bobbins in his original Les Paul as “double cream and black and cream.”

So, are the Gibson bobbins “white/ivory” or are they “cream”?

There are at least three possibilities:

1. Larry lied, lied, lied in the affidavit!
   The original Super Distortions were exactly the same shade as aged Gibson bobbins!
2. Larry is deliberately confusing customers by referring to white Gibson bobbins as “cream”!
3. After 40 years of listening to outraged, addled rants, the old man is confused himself.

[rjb]

Law is Not Science

I believe this is an extension of the "logic" which lead Owens Corning and Sweet and Low to try to trademark the color pink:
http://scholarship.law.duke.edu/cgi/...61&context=lcp

Hmm. That text is a bit dated. It speculates about the outcome of an “upcoming” Supreme Court hearing that was decided eons ago.

At any rate, Owens Corning does not have a trademark on the color pink. It has a trademark on pink colored fibrous glass residential insulation. There is a difference.

Owens Corning chose the color pink as its brand- no different, really, than branding a steer with an arbitrary symbol representing a ranch.

Supreme Court ruled that a single color can stand as a trademark if it has acquired “secondary meaning”- that is, if the public has come to associate the color with the product’s source. There is no practical, “functional” reason why insulation should be colored pink- it is used only as a mark.

Owens Corning showed that because it had been selling pink insulation for a gazillion years, and had spent a bazillion dollars on extensive advertising campaigns featuring the Pink Panther, that people did associate pink insulation with Owens Corning. So, what’s wrong with that?

Sweet’N Low didn’t try to trademark the color pink. They argued that their pink restaurant packets had gained secondary meaning. I’m not motivated enough to suss out the details, but they lost the case.

And for people who use artificial sweeteners, that kinda sucks.

Different sweeteners contain different chemical compounds- and you used to be able to tell them apart by the color (pink, blue, or yellow) of the packet. Now it’s a closterflock; any color packet could contain anything. So much for trademark law helping consumers avoid confusion!
The Color of Confusion | DuetsBlog

Law is the effort to codify an endless stream of arbitrary and irrational decisions, as if science were never invented.

I think a lot of techies have this problem- we want the world to be logical and consistent.
We want the laws of societies to be like the laws of physics. But they are not.

If you cross a border into another country, you can be assured that Ohm’s Law and the Law of Gravity will remain the same. But the traffic laws may not. You might even find that everyone else is driving on the wrong side of the road.

Law is not science. Law has nothing to do with science. Law is more like history; you can’t logically “figure out” history- you just have to learn it. Law is like a sport that has different rules in different regions- and different interpretations of the rules within the regions.

Let’s relate that sports analogy to the “double cream” case:
In order to “Call ‘em like you see ‘em”, you have to see the game and you have to know the rules of the game.

Here is the game:
http://www.wolfetone.com/trademark/CREAM.pdf

Here is an overview of the current rules:
http://www.uspto.gov/sites/default/files/BasicFacts.pdf

Read those two documents, and you will feel like a one-eyed man in the land of the blind.

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IMPRESS THE KIDS ON YOUR BLOCK

For the true sports geek, here is the complete official rule book:
https://mpep.uspto.gov/RDMS/TMEP/cur...rent/d1e2.html

Wanna know how the game is played in China? Ask the International Trademark Association.
Lending Color to Trademarks: Protection and Enforcement of Color Marks in the U.S., EU, China and Japan

Check out fun texts written in practically plain English at the Wolfetone School of Law Library:
Index of /trademark

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REMEMBER, LAW IS LIKE HISTORY!

Watch An Ignorant History Class From Saturday Night Live - NBC.com

[rjb]

The Thread Went That-a-Way!

Ohhh yeah.. Larry claims that nobody was using exposed coils or double cream, yea??

Just a note to future historians and archeologists.
The "Larry is a Lying Lizard" thread continues here:
http://music-electronics-forum.com/t42305/#post430063

[David Schwab]

Ohhh yeah.. Larry claims that nobody was using exposed coils or double cream, yea??
Ibanez. 1975 catalogue...

Yeah, but those are DiMarzio SDHB copies. The Super Distortion came out in 1972. Lots of Asian guitars copied that look, along with brass nuts and stuff.

People had been taking the covers off their humbuckers for a while, but you got what ever color bobbins where in there, and no new pickups came that way... there were no after market pickups before Hi-A, DiMarzio, and Bill Lawrence. DiMarzio did do the double cream first, but that's not their standard color now. They even sold accessories, like binding, pickgards, and other parts in that cream color.

[tedmich]

"...and then they came for the double cream PUP makers, but I said nothing because cream PUPS are for orthodontists who play for 1h every 6 months...


and when they came for me there was no one left to speak!!"