Now, you may be wondering, why a guitar designed in the 1950s is the topic of internet discourse in 2026, and how Fender is attempting to protect their intellectual property rights now, when every second guitar brand has been selling lookalike Stratocasters for almost as long as Fender has been selling the original.
If I asked you to imagine an electric guitar, I don’t need to be a psychic to guess that the image your mind’s eye conjured up, looks something like this:
Supplied image
This was however not always the case. The first electric guitar was created in the 1930s and was colloquially known as “The Frying Pan”, which was descriptive of its banjo-like shape. This new technology was incorporated into the more traditional hollow-body guitars of the time, and in the 1940s, Les Paul mounted pickups on a solid block of pine, bringing us closer to the electric guitars we know today.
In the early 1950s, Leo Fender and his team of luthiers set out to revolutionise the electric guitar. Following years of experimentation, alterations, scrapped drafts and tests, the Stratocaster was created and released in 1954. The Stratocaster was groundbreaking for a number of reasons, including (for the guitar-nerds amongst us) its double-cutaway design (which gives it its iconic look), three single-coil pickups and synchronised vibrato.
Despite its introduction coinciding with the boom of rock-n-roll in the mid-1950s, the Stratocaster got off to a slow start, with most musicians at the time seeing it as a “gimmick”.
That was until Buddy Holly plugged in a Stratocaster and introduced it to millions of television viewers in 1957. Few musicians did more to popularise both rock-n-roll and Fender's revolutionary guitar. By the close of the decade, the Stratocaster had cemented itself as a rock-'n-roll staple.
Over the years, many other legends of the craft have picked Stratocasters as their axes of choice, including Jimi Hendrix (who played it upside down) and Eric Clapton. Today, over 70 years after its initial release, the word “electric guitar” is still synonymous with the Stratocaster, such that the guitar emoji on most operating systems is based on its design.
Fender itself sells the Stratocaster across a wide variety of price ranges, from the entry-level “Squier” guitars to the very high-end “Custom Shop” guitars. The market is also flooded with Stratocaster-lookalikes, which have for decades been sold alongside Fender’s Stratocaster.
Rather than actively stopping these lookalikes, Fender ran a series of advertisements over the years to alert consumers to their status as the “original”, including a 1986 issue of Guitar Player, which read “There’s only one Eric Clapton. And only one Fender”, and a 1988 Guitar World ad that read, “You’re not taken in by look-alikes or by wild claims.”
Too generic to trade mark
Fender did attempt to register the iconic Stratocaster body shape as a trade mark in the USA, but in 2009, the Trademark Trial and Appeal Board (TTAB) of the US Patent and Trademark Office ruled that the Stratocaster body shape was not capable of identifying the source of the products and held that
this configuration is so common that it is depicted as a generic electric guitar in a dictionary.”
The ruling specifically cited Fender’s own above-mentioned advertisements as proof that consumers can differentiate Fender guitars from lookalikes by relying on other factors, including the headstock and Fender trade marks.
A similar objection could arise under section 10(2) of the South African Trade Marks Act, 1993, which holds that a trade mark is not entitled to registration if it is not capable of distinguishing the goods of one trader from the same goods of another trader and / or has become customary in the bona fide and established practices of trade.
Copyright angle
In March 2026, Fender took a different approach. Relying on the copyright in the guitar shape, it secured a default judgment before the German court, which ordered Chinese manufacturer, Yiwu Philharmonic Musical Instruments Co. to cease manufacturing, offering or distributing guitars featuring the Stratocaster body shape.
By relying on copyright, Fender has avoided the need to show that the body shape is capable of distinguishing, and instead only has to show that the body shape is an original creative expression. This highlights the interplay between different intellectual property rights and the ways in which they can supplement and complement each other.
Melissa Morris 25 Nov 2022 Following this successful outcome, Fender has now sent cease-and-desist letters to a number of other guitar manufacturers, including industry giants Yamaha and Thomann, giving rise to the current online discourse.
Importantly, the German court’s decision was a default judgment, meaning the other side did not oppose the application or provide counterarguments. While this judgement has effect across the EU, it is also not clear how this matter would be decided in other jurisdictions.
Reverse engineering defence
In South Africa, for example, the “reverse engineering” exemption found in section 15(3A) of the Copyright Act, 1978 allows the re-engineering of a three-dimensional artistic work (such as a work of craftsmanship). This may provide the manufacturers with a defence if they can convince a court that the guitar shape primarily has a functional purpose and is made in an industrial process.
Fender’s attempts to “put the toothpaste back in the tube” are an important lesson to brand owners to secure protection for and enforce their intellectual property rights as early as possible.
Every brand owner wants their product and trade mark to obtain “icon” status, but this comes at the risk of the very features that make their own product iconic, becoming generic in the trade.
This case also highlights the delicate interplay between protecting your intellectual property and protecting your relationship with the community that granted your product “icon” status in the first place.
