You’re looking at some new guitars for sale on the web, and you come across a well-known, high-end, American (or any other high-quality instrument) branded guitar for $75. A great bargain? No. It's probably a counterfeit.
A counterfeit guitar is one where an actual trademark of a well-known guitar company is placed on a cheap, inferior version and is foisted on the marketplace as the real, high-quality original.
[See generally 15 U.S.C §§ 1127, 1114(1), 1116(d) (2006) (“counterfeit” defined). See also GMA Accessories, Inc. v. BOP, LLC, 765 F. Supp. 2d 457, 471-72 (S.D.N.Y. 2011) (discussing the elements of a counterfeit). Similarly, for the European Community definition, see Council Regulation 1383/2003, art. 2, 2003 O.J. (L 196) 8.]
Although common sense should prevail, there are still many people who will somehow believe they have stumbled upon a “bargain” of monumental proportions and will buy the counterfeit instrument. When this ersatz instrument eventually fails, that same consumer will likely send it back to the true trademark owner and say, “Hey, please repair this under your warranty.” Of course, the authentic company does not have to repair this substitute guitar as it is not theirs (and clearly not under their warranty); and, it should, be noted, they can’t make a silk purse out of a pig’s rump.
Counterfeits are of poor quality, from the choice of woods and finishes to the parts, packages and pickups. Counterfeit websites are easy to spot, as they often have preposterous descriptions of the guitars’ features that are often unintentionally humorous. What is not at all humorous is that these purveyors of passing-off are offering to sell groupings of these instruments — sometimes up to 25 guitars at a shot — to any consumer.
This affects the very core business of the authentic guitar companies.
[See U.S. Int’l Trade Comm’n, USITC Inv. No. 332-514, China: Intellectual Property Infringement, Indigenous Innovation Policies, and Frameworks for Measuring the Effects on the U.S. Economy, 2010 WL 5474164, 5.]
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Guitar companies are, for the most part, owned and run by very committed, conscious, guitar-oriented luthiers, players and business people who carefully design and source instruments for musicians. The purchase of each counterfeit undermines the quality that genuine companies have fought hard to establish in the marketplace. In addition, the sale of each fake also takes away a sale of a real guitar and the income that a genuine company needs to continue to design, build, and market its guitars. The adage “if it looks too good to be true … it is” fully applies with counterfeits.
Prior to forming Bienstock & Michael, P.C. 25 years ago, Ronald S. Bienstock was editor-in-chief and publisher of International Musician & Recording World and served as General Counsel to Hoshino, U.S.A. (manufacturer of Ibanez Guitars, electronics and Tama drums). In 1991, Ron was voted one of the top 100 "Most Influential People In The Music Business" by BAM Magazine. Bienstock & Michael’s practice serves a broad spectrum of clients throughout the entertainment and musical instrument industries, specializing in the fields of intellectual property, business matters and litigation. Ron teaches Entertainment Law as an adjunct professor at New York University and is a frequent guest lecturer for graduate and undergraduate schools at NYU. Ron has been a music business commentator for NPR, WBAI, Barely Legal Radio, Tech TV and CNN. He has been a guest lecturer, instructor and panel moderator for BMI, ASCAP, CMJ, NEMO, SXSW, NAMM, PMA, RPMDA, the Florida Music Conference, Miami Music Conference, Atlantic Records’ A&R University, the New York State Bar Association (NYSBA), the New Jersey State Bar Association, The Benjamin Cardozo School of Law, St. John’s School of Law, Rutgers School of Law, Seton Hall Law School, Ithaca College and other organizations and universities.
