OHIM makes some noise around trademark protection for guitars and basses

The General Court has held on September 8, 2010, that the trademark filed by Mr. Hans-Peter Wilfer consisting in the specific guitar/bass headstock shown below lacked distinctiveness and could not be registered in classes 9 and 15. This decision confirmed the previous findings of the Opposition Division and of the Board of Appeal.

The General Court very interestingly defined the profile of the consumer to consider for assessing trademark distinctiveness: the relevant public is constituted both by professional musicians and by amateurs who play music and do not have necessarily a particular knowledge relating thereto.

guitars and basses

With regards to the level of care, it was set up above of the ordinary level of care of the medium consumer by considering that i) the products at hands are not bought under a regular basis because they represent quite a long term investment and ii) as consumers generally are assisted during their purchasing,

The Court held that the sign would ‘clearly’ remind of the simplest shape that a guitar headstock is likely to look like (without need for the Court to further describe what this simple guitar headstock exactly consisted in). It also did not significantly diverged from the usual shapes of the other guitar headstocks. The Court added that, out of knowing whether a guitar headstock could indicate one origin, the mark concerned was regarded as containing no feature likely to be perceived as a reference to the commercial origin of the specified products.

As Trademark Attorney ad also long term musician, this decision appears unrealistic and completely disconnected from the reality of the musical instruments market. Guitar headstocks indeed should be open to trademark registration (we already took this view in an earlier article we wrote for TRADEMARK WORLD magazine on the question).. Guitar companies all have their own particularly shaped headstocks which amateurs, professional musicians and guitar sellers immediately identify and attribute to a particular manufacturer (this aspect being quite eluded in the decision hereby commented). Of course, this rather applies to long and known established companies (Gibson, Fender, Ibanez and…Warwick) than to new comers to the musical instrument market (Whale or Custom 77 for instance). Headstocks actually allow consumers to identity the origin of the instrument for various reasons we would be happy to share with our readers (that would be too long to detail in here!).

We immediately recognized the headstock proper to Warwick bass guitars by just looking at the headstock applied for as CTM. While, we have been playing guitar for about 25 years, basses has never been our cup of tea and we still immediately identified Warwick basses headstock… Mr. Hans-Peter Wilfer, the applicant for the CTM involved in the above proceeding, is actually the President of German Company Warwick Music. This link has been identified through summary searches but we did not feel compelled to search at all for the origin of the headstock involved in the proceeding above…

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