A 2012 color trademark court desicion. Pay attention.

[WolfeMacleod]

. Wayne Charvel says he potted EVH's DiMarzio pickup shortly after he opened his shop in 1974

Does Wayne happen to remember what color or kind of pickup that was Did he mention it?

Supposedly, this in a VH pic from 1974.

[WolfeMacleod]

So is this all just wishful thinking?
Or, is someone really going to to Take DiMarZZ to court?
Or, is this thread, just a way to take out their frustrations in futility, by the means of type print?
I don't see this ever changing without a real court battle.
Don't see how you are ever going to overturn a 40 year standing ruling?
Like Lollar mentioned below, spend you time and efforts, trying to come up with something new and viable, and live and let die!
T

So far, it's just research.

[rjb]

From my research, it looks like they moved between June and July to the Richmond Terrace location.

Hey, nice digs!
Maybe that's just where they stored the money.
Did you know that the headquarters for many large corporations are post office boxes in Delaware ?
(No, I don't have a photo.)

While you're Google-Earthing around, could you look up Bill's Custom Guitar Shop, 1971 in NYC?
I don't have the address.

The most important thing here is functionality. Not first use, that's secondary.

Please avoid that word. It has another meaning.

We can certainly show without a doubt that his use was not substantially exclusive,

Define substantial. What were Mighty Mite's sales figures during the same period?

(Even if we do politely ignore the striking resemblance of the Mighty Mite Model 1300 Distortion Humbucker to the DiMarzio Model DP100 Super Distortion Humbucker.)

and that it is harmful to competition.

Jason seems to be doing just fine.

In a previous statement, you mentioned that LSR never made replacement pickups. I've found several ads for LSR replacement pickups, by the way.

There you go again! <Insert Ronald Reagan recording>
I, quoting Bill Lawrence, said that Lawrence Electrosounds (founded 1965 in Germany) never made replacement pickups.

Jimmy didn't want them back.

A likely story. Your honor, are we to believe the testimony of an incorrigible bobbin thief?

I mentioned earlier that that is not the main focus, it's functionality. However, Dimarzio must have been aware of concurrent use,

"Concurrent" as in 1974, or "concurrent" as in blatant copies made before the trademark application?

exposed coils,

on a few hotrodded guitars, not on replacement pickups (which were a new industry).

and was certainly aware that '59 PAF bobbins were not white.

Aged bobbins exposed to light may not have been white, but they weren't "DiMarzio cream" either.

If nothing else, DiMarzio, through market saturation and print ads, undoubtedly pioneered the use of the name "cream" to describe plastic bobbins.
Can you buy "cream" plastic switch plates at Home Depot? No.
You can get white, ivory, almond, grey, brown, or black- but not cream.
Why no "cream"?
"Real men" just don't use that word- unless they're talking about coffee.
"Real men" certainly didn't use that word to describe plastic in 1970.
"Cream" is an interior decorator word.
Have I won this round of the "silliest arguments" contest?

My inbox has been cleared.

Message sent.

Later,
-rb

---

EDIT
I just noticed this

Now, IMO, 6 million bucks worth of pickups "in the present configuration" is an awful lot of pickups. Especially when you consider 1974-1978 dollars. Blah, blah, blah......

Not again!
The quoted figure was 3 million, not 6 million.

[rjb]

Does Wayne happen to remember what color or kind of pickup that was Did he mention it?

I provided the link. Look it up. Wayne said EVH had a DiMarzio pickup, that's all I know.
According to at least one of the affidavits, cream SDHBs were originally known just as "DiMarzios".
DiMarzio said he made humbuckers with a cream laminate top before introducing "the present configuration".
Whatever it looked like, it had to be out of the guitar for Wayne to pot it.
What does a pic of EVH playing a guitar with single coils prove?
He's not even two-hand tapping. Are you sure EVH used that technique?

I think we've exceeded my silliness tolerance level.

Bye,
-rb

[rjb]

A message that appeared here briefly, then got edited away, troubles me.
Please be advised:

Another thing that can happen is that anyone who has received a threat from Dimarzio in the past can file for a declaratory judgement that ask the court to find the trademark aesthetically functional (citing previous cases, of course) -- as I understand it, Dimarzio would then have to come prove that it's not aesthetically functional... which I don't think they could do. Why?? Simple question: Why do pickup companies offer pickups in more than one color?

That would only apply if the mark were listed in The Supplementary Register.
Since the mark is listed in the Principal Register, the plaintiff would have the burden of proof to show that the mark is aesthetically functional. The only advantage the plaintiff might have is that he could file in a "friendly" district.

I am certain of this. Look it up.



Just tryin' to keep the boys from hurtin' themselves.
-rb

---

PS

But.. if 1000 people donate $100 to the defense... or 100 people donate $1000...

I would be willing to kick in for a mass card at the Shrine of St. Jude (patron saint of lost causes).

[salvarsan]

Pantone has a bunch of similar colors that will serve in place of cream.
Ivory and vanilla top the list of marketable descriptors for pickup bobbins.
Banana or bastard amber, not so much.
Bisque is effete unless accompanied by boiled lobster shell.
Sarcoline is way out there.

Double cream bobbins may be an unhealthy obsession.

At some point, you must accept that there's always a litigious @#$%&! willing to trademark prior art at the expense of the entire industry and that the inevitable response is to innovate past them.

Super Tuscan was an informally-named generic wine blend intended to get past a restrictive Italian standards body in the '70s. Thirty years later, we got Super Texans, similar blends that served to distinguish a market category instead of a branded offering.

. . . until some short-sighted sociopath trademarked the Super Texan name and went on to dilute his own brand with inferior offerings. It didn't occur (or matter) to him that Texas wines would soon escape local distribution and compete internationally.

Moral: Make cool stuff and let the trademark monkeys destroy their own brand.

[rjb]

bastard amber

Yea! Translucent bobbins could be classy.


Seriously.

[WolfeMacleod]

Define substantial. What were Mighty Mite's sales figures during the same period?

According to Randy Zacuto, who I've been speaking with a lot lately, he took three million dollars worth of orders during a single NAMM show. They were doing huge numbers of cream pickups

Jason seems to be doing just fine.

You do realize, don't you, that in the 40 years of aftermarket pickup industry, Jason has been the only other person other than Dimarzio and Duncan to have any meaningful growth? EMG discounted, because they product something different. Lace, Lawrence, TV Jones, Fralin, Van Zandt, WCR, Throbak, myself... all small, employing just a few people. I could discount Lace too, because the tech is so different.

There you go again! <Insert Ronald Reagan recording>
I, quoting Bill Lawrence, said that Lawrence Electrosounds (founded 1965 in Germany) never made replacement pickups.

So you did. My mistake



A likely story. Your honor, are we to believe the testimony of an incorrigible bobbin thief?

"Concurrent" as in 1974, or "concurrent" as in blatant copies made before the trademark application?

Concurrent as in it really doesn't fucking matter.

Aged bobbins exposed to light may not have been white, but they weren't "DiMarzio cream" either.

You've obviously never seen a PAF who's covers have never been removed, have you? "Dimarzio" cream or not, it doesn't matter since the trademark is so vague. Everyone's cream is different. Even Gibson's own cream is different. And you obviously haven't spoken to the oldest of the Heritage employees, either. Or George Gruhn. Or Seymour. Or any of the other old-timers who've been around long enough to remember what they looked like without covers.

If nothing else, DiMarzio, through market saturation and print ads, undoubtedly pioneered the use of the name "cream" to describe plastic bobbins.
Can you buy "cream" plastic switch plates at Home Depot? No.
You can get white, ivory, almond, grey, brown, or black- but not cream.
Why no "cream"?
"Real men" just don't use that word- unless they're talking about coffee.
"Real men" certainly didn't use that word to describe plastic in 1970.
"Cream" is an interior decorator word.
Have I won this round of the "silliest arguments" contest?

whoopdie-fukkin-doo.


Message sent.

Later,
-rb

Later. Troll.

Not again!
The quoted figure was 3 million, not 6 million.

Look again. As of the July 5th, 79 statement "Approximately six million dollars worth of pickups in the present configuration have been sold"

That would only apply if the mark were listed in The Supplementary Register.
Since the mark is listed in the Principal Register, the plaintiff would have the burden of proof to show that the mark is aesthetically functional. The only advantage the plaintiff might have is that he could file in a "friendly" district.

I am certain of this. Look it up.

Going off information given to me by three attorneys here. But I'll look further into that.

[WolfeMacleod]

I provided the link. Look it up. Wayne said EVH had a DiMarzio pickup, that's all I know.

FOudn the link. Nope, he doesn't say what it was. Or when it was, just that it wwas "early" 1970s.. some time after '74. Assuming it was the same shop he opened in '74 (which is implied) it could have been any time after that.

Oh. And as for "functionality" having another meaning, why don't you tell us, oh great Wizard? Since you're so learned in functionality doctrine.

[rjb]

Wolfe,

I'm going to refrain from replying to the bulk of your arguments, because replying would only lead to more futile back-and-forth.
I've been posting some silly stuff lately, and so have you.
IMHO, the difference between us is that I realize I've been posting silly stuff.

You've obviously never seen a PAF who's covers have never been removed, have you?

Sure I have. On a lap steel.
But wait, is this a koan?
Like "What is the sound of one hand clapping?"
"What is the color of a bobbin in a PAF whose covers have never been removed?"

Everyone's cream is different. Even Gibson's own cream is different.

I'm not arguing.
But may I point out that this fact could be used to argue that cream is not a functional color?

In Brunswick v. Whomever, black outboard motors were deemed functional because (as they say in fashion) black goes with everything.
In John Deere v. Also-Ran, the loaders in question were painted the exact same shade of green as JD tractors.

Cream could be deemed not functional because it is difficult to get a color match between parts from different manufacturers- or even parts from the same manufacturer.

It could be said there are many colors other than cream that are aesthetically attractive when combined with a wide variety of other colors.
It could even be said that a multi-shade treatment (such as translucent bastard amber) would be more "functional" than cream.

And you obviously haven't spoken to... old-timers who've been around long enough to remember...

Ahem. Kid, I am that old.
Getting a little off topic, I'm old enough to remember when that cream ABS binding you think is "traditional" came out.

whoopdie-fukkin-doo.

Oh, the arrogance of today's youth!
Why, I never talked like that when...<shuffling off, muttering to no one in particular>.

Look again. As of the July 5th, 79 statement "Approximately six million dollars worth of pickups in the present configuration have been sold"

By golly, you're right! How could I have doubted you? Oh no, I must be going senile.

Let's see... there's the $3M vs. $6M; the Maxon "staple" pickup; and we'll count the Hoboken crack- even though I was half joking. I count 3 verifiable factual errors for me. How many you got so far? Roughly?

Going off information given to me by three attorneys here. But I'll look further into that.

OK, this is serious. Please look into this. Sooner rather than later.

---

Oh. And as for "functionality" having another meaning, why don't you tell us, oh great Wizard? Since you're so learned in functionality doctrine.

The word I bolded was "secondary", not "functionality"- and I was only making a bit of obtuse word play.
Secondary has another meaning because in the legal term "secondary meaning" the word secondary has a meaning other than its common definition.

Wizard? I've said straight out that I've only been reading about this subject for a few weeks.
To be precise, I started on June 16. But I haven't been actively "studying" for the past 3 or 4 weeks.

Wizard! First I'm a Troll, now I'm a Wizard.
At least I'm not Charming (inside joke).

If anyone needs to get in touch with me, I'll be under the bridge.



Hugs & Kisses,
- Ralph "The Wiz" Barthine

[Lollar Jason]

this has become pretty amusing The ghost jury- never heard of that but the whole point of it keeping it real- there is SO much to that. Everyone thinks they are right except sometimes the other guy is more right and sometimes even if they are wrong they are deemed right or visa versa. :{

" Jason has been the only other person other than Dimarzio and Duncan to have any meaningful growth? EMG discounted, because they product something different. Lace, Lawrence, TV Jones, Fralin, Van Zandt, WCR, Throbak, myself... all small, employing just a few people. " What is meaningful growth???
Thats quite a claim- I know how many people Lindy has had working for him a different times and at one time he had only a few less than I have now and he may still. Lindy doesnt go to shows- lindy doesnt take credit cards so how serious is he about growing? Maybe he is growing I dont know but if hes maintaining his level- I think he is totally happy being right where he is and thats why he does what he does. WCR is happy at the size he is now- hes got plenty of work and wants to keep it the size it is now- as I understand it. T Vs main client has been fender and he has only recently been going for a wider clientel which he could do.
There are alot of people with many different reasons as to why they maintain a smaller crew- Mine is a tiny portion of Duncans size. Both wolf and I got serious about having a pickup business at the same time- I didnt take any loans out or have a cash pile to invest and neither did he, I made different decisions about what I was going to make and how I was going to go about it- I had the ability to make my own parts and still do, I had a good 15 years of experience making all sorts of widgets from custom one offs to limited production and I gigged for a solid 20 years by the mid 90s.
Im not buying Im the only one thats had growth but I can say alot of the small guys are small because they dont deliver, thier work is shoddy- just look at photos they post, product is not consistant, maybe they are not that serious, maybe they dont talk guitar language, maybe they only make one kind of pickup- mabey they are cantankerous.
Look at how many hundreds of pickup winders have come and gone since the mid 90's- some of them took the money and ran- most just dissapeared because they didnt have anything unique to offer IMO. Now the situation appears that there are so many and many of those are trying to compete by undercutting the price -which makes it hard or impossible to invest in tooling- that everyone is tripping over each other so its difficult to distinguish yourself as different. Tough time to get established particularly when "we use the best materials available" just really means you are at par with most everyone else.

[John Kolbeck]

Look at how many hundreds of pickup winders have come and gone since the mid 90's- some of them took the money and ran- most just dissapeared because they didnt have anything unique to offer IMO. Now the situation appears that there are so many and many of those are trying to compete by undercutting the price -which makes it hard or impossible to invest in tooling- that everyone is tripping over each other so its difficult to distinguish yourself as different. Tough time to get established particularly when "we use the best materials available" just really means you are at par with most everyone else.

I feel like the contrast between the small guys and the big names like DMz and SD is the personal touch. Their customer service seems cold or nonexistent. Music is something we're passionate about, playing music is a special experience, in contrast to just listening to it passively, but when you deal with the big names, you feel the opposite of special. DiMarzio's packaging doesn't appear to have changed since the 80's. There's a metaphorical (sometimes real) layer of dust on them, so I come across their products and I even feel guilty, like perhaps I'm stuck in the past, and I should really get a hair cut. I think Seymour Duncan posted once or twice on their companies forum well over a decade ago now. Larry DiMarzio only gets out of bed in the morning to file lawsuits. It's like they've all moved on, maybe I should as well.

The small guys are the opposite of all this. They're the saviors of the industry. Working with them gives me a feeling of being current, they make playing the electric guitar feel special. You see it on guitar forums, a new winder shows up, and various forum members talk about what a great guy they are, and how they wind killer pickups. I think the pickup is secondary to the customer service experience. And I've noticed that the smaller companies have started throwing in sets of guitars string and guitar picks in with their pickups. The hand written wording on the back of Lollar pickups is very nice. It just shows that someone else out there is as passionate is as the customer. So very different than how you feel when you get something from the big names. Having these numerous pickup startups stay small allows them to maintain that one to one business relationship with customers, though I think it very possible to scale and still maintain that relationship with customers.

[Beef Coon]

I could see how a big fish competetitor in the pond might actually see a benefit from Dimarzio's trademark and strategically decide to not do a darn thing. The fish might not be able to do double cream, but they get the benefit of the policing by Dimarzio, keeping competition at bay - which may be worth enough to not "fight" over it. I'd bet a bread-loaf pot metal keeper bar that this type of cost-benefit analysis has been done by some.

-BT

[ken]

Interesting thread. Nothing at all like Wolfe intended... but I do think he has many points.

Look at how many hundreds of pickup winders have come and gone since the mid 90's- some of them took the money and ran- most just dissapeared because they didnt have anything unique to offer IMO. Now the situation appears that there are so many and many of those are trying to compete by undercutting the price -which makes it hard or impossible to invest in tooling- that everyone is tripping over each other so its difficult to distinguish yourself as different. Tough time to get established particularly when "we use the best materials available" just really means you are at par with most everyone else.

Now you're preaching to the choir here. Ebay is full of winders and parts nowadays, all originally bought by people who were convinced that pickup winding was easier than picking gold coins off a beach, but found out they were better at 'blue sky' marketing than actually making something. Cutting prices is a bad idea, because how do you raise them back up when you need to? Instead, I offer free CONUS shipping and a lifetime warranty, with reasonable limits of course. Not only that, I answer the phone myself no matter what time it is. I find that my customers value a quality pickup and a great buying experience much more than a low price, and I'm going to do whatever I can to give them that. And yes, I have sold sets of pickups at 3 AM, many times.

The small guys are the opposite of all this. They're the saviors of the industry. Working with them gives me a feeling of being current, they make playing the electric guitar feel special. You see it on guitar forums, a new winder shows up, and various forum members talk about what a great guy they are, and how they wind killer pickups. I think the pickup is secondary to the customer service experience. And I've noticed that the smaller companies have started throwing in sets of guitars string and guitar picks in with their pickups. The hand written wording on the back of Lollar pickups is very nice. It just shows that someone else out there is as passionate is as the customer. So very different than how you feel when you get something from the big names. Having these numerous pickup startups stay small allows them to maintain that one to one business relationship with customers, though I think it very possible to scale and still maintain that relationship with customers.

Mr. Kolbeck, you get it. However, in this economy with the massive amount of actual makers out there today, (as well as those who buy theirs from Korea... but I digress) you have to be at the top of your game to survive. If your product isn't spot on tonally and of highest quality no amount of swag or fancy plastic boxes are going to save you. I survive because I give my customers the best quality pickup I can with the best customer service possible. In fact, I obsess about it. Some obsess about photos on websites or how cool their packaging is, but the dancers up front don't hear any of that and couldn't care less. If the player's tones not happening the dancers ain't moving, and if they ain't moving the players don't get paid... think about it.

Rant over

Ken
Angeltone Electronics LLC
findyourtone@angeltone.com

[rjb]

My Work Here is Done

In the words of The Lone Ranger, "My work here is done".

To be honest, I joined this forum discussion because I had gotten tired of seeing the same misinformation repeated year after year. I have learned a lot about trademark law (and the “double cream” mark in particular) in the past two months, and I hope my "tutorials" might provide information and links to resources to help others who care to learn how the process really works. Those who want to stay uninformed will stay uninformed. That's life.

Also, I was concerned about seeing a certain party potentially causing financial harm to himself and others. It is not healthy to live in an echo chamber where everyone agrees with you- and I felt it was time for a reality check. I think I've said enough to make my point- or not, as the case may be. That's life.

I may still drop an occasional line to this thread- but no more 3-part missives!
For now, I reckon it’s time to ride off into the sunset.

Heigh-Ho SilverTop™, Away!
- The Lone Whizzer



PS-
As a memento of the good times, I leave three brief addenda to the Tedious Trademark Tutorial™ series for your enjoyment.