DiMarzio is sueing Sheptone over double-creme

[Richard]

I can see that working. Call it the Oreo look. A black sticker on a cream bobbin.

[Possum]

You don't need black film. You can still make them but IF you put photos on your website of double white, creem, creme, kreem, and say these are for sale, you have violated his trademark. I noticed that even Guitar Fetish doesn't show double creme buckers. If you have any shots like that better remove them now while you can.

[Jim Shine]

You don't need black film. You can still make them but IF you put photos on your website of double white, creem, creme, kreem, and say these are for sale, you have violated his trademark.

You CAN make them, but if they order a set of the non-advertised pickups and you send them, you violated their trademark. Seymour Duncan secretly sold them unadvertised and "unavailable" for years. You just had to know how to ask for it (with cover, not soldered on). Dimarzio cracked down and now you can't get the 6 pole piece/6 slug humbuckers with double cream coils from Duncan no matter what. It is not a marketing thing.. they are not tolerating the practice

[WolfeMacleod]

Hello,
Can't the pickups have a removable black film adhered to the top, that can be removed by the customer. There should be a much simpler way around this. I can't believe this is causing such a problem. The pickups could be covered. This has even been discussed on another forum.
The go fund me account is preposterous, to help somebody win a lawsuit, for the privilege of buying their pickups, for hundreds of dollars each.

The GoFundMe account is not "preposterous" by any means. It's ultimate purpose was not only the defense of the lawsuit, but the successful ELIMINATION of the cream trademark entirely. You see, if the lawsuit was won, the trademark becomes invalid. It goes away. Larry loses it. It vanishes into the ether and not only Shep, but everyone would be allowed to use it without fear of being driven into the dirt, stamped out, snuffed out, put out of business, bullied, intimidated, suppressed, and sued? What's so preposterous about that goal?

If Dimarzio has majopr issues with even a cover being put on a humbucker, how do you think they're feel abut a thin adhesive strip that could be peeled off? I don't think they'd dig that. Probably even less that a cover.
1000 people at $100 each, this could be done. 100 people at $1000 each, it could be done. I know some major players who are considering getting involved.





I forgot to mention above int he Dimarzio statement/Bill Lawrence post that Larry would have absolutely known of the existence of a cream exposed-coil humbucker before his use. HE APPRENTICED UNDER BILL LAWRENCE IN EARLY 1970's. shortly after Kent Armstrong did. According to Kent, there's no way Larry would not have known that Bill had done exposed coils, and cream for that matter.

[WolfeMacleod]

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



1976


and 1974...

[Justin Thomas]

Hey Wolfe,

I don't make pickups so I don't come over here often... But would a TM cover a Japanese manufacturer that sold in the US? I thought only companies who were in the US and selling in the US would be restricted by the TM. At least, that's how I read it...

Also, at the time his TM was issued, wouldn't Ibanez have been a MUCH bigger fish than DiMarzio? I thought Ibanez was like Yamaha - a large multi-faceted company, of which guitars was only one branch... in that case, if DM had sued Ibanez at the time, maybe HE would have been driven into the dirt with legal fees... Or just plain been bought out and gobbled up.

Thanks for the Lawsuit catalogs, by the way - I've been wondering how close those guitars were to the "real deal..." I can see why Gibson went after them,'m rightly or wrongly...

Justin

[SpareRibs]

[QUOTE=WolfeMacleod;429391]The GoFundMe account is not "preposterous" by any means. It's ultimate purpose was not only the defense of the lawsuit, but the successful ELIMINATION of the cream trademark entirely. You see, if the lawsuit was won, the trademark becomes invalid. It goes away. Larry loses it. It vanishes into the ether and not only Shep, but everyone would be allowed to use it without fear of being driven into the dirt, stamped out, snuffed out, put out of business, bullied, intimidated, suppressed, and sued? What's so preposterous about that goal?

Hello,
The preposterous part is, customers funding the right to sell pickups for hundreds of dollars each. If that is what it takes, the manufacturer should bear the burden as the price of doing business. It is not much different than passing the hat to fund a new die for pickup bobbins.

[big_teee]

The GoFundMe account is not "preposterous" by any means. It's ultimate purpose was not only the defense of the lawsuit, but the successful ELIMINATION of the cream trademark entirely. You see, if the lawsuit was won, the trademark becomes invalid. It goes away. Larry loses it. It vanishes into the ether and not only Shep, but everyone would be allowed to use it without fear of being driven into the dirt, stamped out, snuffed out, put out of business, bullied, intimidated, suppressed, and sued? What's so preposterous about that goal?

If Dimarzio has majopr issues with even a cover being put on a humbucker, how do you think they're feel abut a thin adhesive strip that could be peeled off? I don't think they'd dig that. Probably even less that a cover.
1000 people at $100 each, this could be done. 100 people at $1000 each, it could be done. I know some major players who are considering getting involved.





I forgot to mention above int he Dimarzio statement/Bill Lawrence post that Larry would have absolutely known of the existence of a cream exposed-coil humbucker before his use. HE APPRENTICED UNDER BILL LAWRENCE IN EARLY 1970's. shortly after Kent Armstrong did. According to Kent, there's no way Larry would not have known that Bill had done exposed coils, and cream for that matter.

I totally agree with Wolfe.
I think it is very reasonable to ask for help, if being sued by Larry D.
Like Wolfe said, if the copyright is struck down all would benefit.
Being sued is very different than challenging the copyright.
Helping with a lawsuit, and legal bills, is kind of like helping someone pay hospital bills.
IMO it is not preposterous at all!
That is my 2 cents.
T

[nickb]

It looks like the plug on the funding effort was pulled at $260 https://www.gofundme.com/28tsft8

[WolfeMacleod]

I totally agree with Wolfe.
I think it is very reasonable to ask for help, if being sued by Larry D.
Like Wolfe said, if the copyright is struck down all would benefit.
Being sued is very different than challenging the copyright.
Helping with a lawsuit, and legal bills, is kind of like helping someone pay hospital bills.
IMO it is not preposterous at all!
That is my 2 cents.
T

TRADEMARK

[WolfeMacleod]

Hello,
The preposterous part is, customers funding the right to sell pickups for hundreds of dollars each. If that is what it takes, the manufacturer should bear the burden as the price of doing business. It is not much different than passing the hat to fund a new die for pickup bobbins.

No, SpareRibs. Here's what the preposterous part is.
Is that the mark is suppressive enough to competition that even as a joint effort between many small makers, we still won't be able to afford a reasonable effort to cancel the mark without outside assistance such as GoFundMe. I can guaranfuckingtee you that if I were able to sell all the cream requests I have, that I'd have no need to "pass the hat" to fund tooling efforts like the P90 for humbucker routs attempt earlier this year.
What's preposterous is that, even with the majority of players knowing about The Mark, they continue to ask small makers to violate The Mark, knowing that such a maker risks being sued.

Customers are ASKING for people to violate the mark. Yes, IMO, they should be willing to support those people that they put in jeapoardy with requests.

[big_teee]

TRADEMARK

I know, I wrote it wrong.
But, wolfie, I'll call it whatever the he@! I want to!
Get over it!
T

[Jim Shine]

What's preposterous is that, even with the majority of players knowing about The Mark, they continue to ask small makers to violate The Mark, knowing that such a maker risks being sued.

Customers are ASKING for people to violate the mark.

Guitar players don't care. They just want what they want at the price they want to pay.

Before Fender licensed headstock shapes to aftermarket companies, I picked up extra money being really good at cutting Fender headstocks out of paddle head blanks. People were willing to pay a premium for that shape.

There are people out there that make a decent side income making fake decals for all major brands of guitars. Guitar players will have a laundry list of excuses why it is okay while totally avoiding the actual fact that applying a manufacturers logo to a product not sold by them is wrong.

[David Schwab]

And this, from their website... No mention of cream anywhere. This should be easy to fight if you have a good lawyer (since they have money for more lawyers).

[rjb]

Not as Easy as You Think

And this, from their website... No mention of cream anywhere. This should be easy to fight if you have a good lawyer (since they have money for more lawyers).

Unfortunately, if you look into USPTO rules, it’s not as easy as you might think.

Trademark Registration and the Importance of Incontestability

The protections provided by a federal registration are strengthened by the provisions in Lanham Act ... which provide that a trademark registration can become “incontestable” five years after the date of registration. A registration that is incontestable is immune to challenge on certain grounds, including that the registered mark is merely descriptive and lacks secondary meaning….In litigation involving an incontestable registration, it is conclusively presumed that the registered mark is valid—i.e., that it is either inherently distinctive or has acquired secondary meaning. See 15 U.S.C.A. § 1115(b) (“To the extent that the right to use the registered mark has become incontestable … , the registration shall be conclusive evidence of the validity of the registered mark and of the registration of the mark, of the registrant’s ownership of the mark, and of the registrant’s exclusive right to use the registered mark in commerce.”). Thus, a defendant accused of infringing an incontestable registered mark cannot defend itself by claiming that the mark is descriptive and lacks secondary meaning.


In order to obtain incontestable status, the registrant must have used the mark in connection with the goods and services in the registration continuously for any five-year period after the date of registration, and must submit an affidavit to the Trademark Office to this effect.

Trademark law has its own vocabulary.

A trademark listed in the Principal Registry bears a “presumption of validity”- a legal presumption of the registrant’s ownership of and exclusive right to use the mark.
DiMarzio’s trademark has been listed since Sep 15, 1981.

After using the mark continuously for a five year period, and submitting an affidavit to that effect, the mark becomes “incontestable”.
DiMarzio did submit the affidavit.

An “incontestable” mark is immune to challenge on the grounds it is “merely descriptive” and lacks “secondary meaning”.

A single-color mark is considered “merely descriptive” unless/until it acquires “secondary meaning”. A mark has “secondary meaning” if it has been shown that customers associate it with the product’s origin.
DiMarzio showed “secondary meaning” to USPTO’s satisfaction during the application process. (I’ll explain this further in another post).

Although DiMarzio may be negligent in providing notice of the trademark claim, the company continues to sell “double cream” Super Distortions and has filed the required periodic statements of Continued Use in Commerce.

So, what does all this mean in plain English?
The trademark is immune to challenge on grounds that customers no longer associate the double-cream configuration with DiMarzio.

Sorry folks.
I don’t make the rules.
-rb