use of a logo / name

[alastairhanson@mac.com]

We make musical instruments and I have a few questions for users - if anyone can help that would be great:

In the 1930's to 1950's a particular saxophone was made called a 'super balanced action. In circles of players it's generally referred to as an 'SBA'.

I'm not aware of 'SBA' ever being registered so can I use this as a model name for a replica of the original item that we're making?

Also, am I correct in thinking that an item made and patented in the 50's is fine to make a replica of now? Does patent protection etc expire after 60 years?

Thanks!

[AndyJ]

Hi Alastair,

We don't normally deal with patent issues here because they tend to be very complicated and operate somewhat differently to other forms of IP such as copyright and design right etc.

However since part of what you have asked about involves trade marks and possibly, copyright/design right, I'll try answer as fully as I can.

For anyone (like me) who had never heard of the Super Balanced Action before there's a useful article about it here. From this we can see that the French company Henri Selmer & cie were responsible for this development, which was no doubt shared with the American and UK off-shoots of the business. In 1946 the French company patented at least one aspect of the SBA construction method (details here) and in all probability patents will also have been registered in other countries too, especially the USA and UK. However patents have a fixed lifetime which varies between countries, although for France, the UK and the USA it's 20 years from the filing date. Therefore any patent filed and granted in the 1930s to 1950s will now be dead*. That removes the major obstacle to what you propose to do.

Design right did not exist at the time we are talking about and copyright (in the UK and USA at least) would not have been applicable to musical instruments. It is possible that under French copyright law (the droit d'auteur) the aesthetic elements of the SBA saxophone's design might have been covered by copyright, but this protection would not have included any of the functional aspects of the design. Whether or not such copyright would exist today depends on who was credited as the designer and when he died. Henri Selmer died in 1941 and so if he was the designer of the SBA, copyright would have ended in 2012 (ie 70 years after his death). This subject would take a great deal of research to uncover the definitive answer and so I suggest that since Henri Selmer & cie is still trading in France, the easiest solution would be to approach the company and ask if they consider the SBA design to be covered by any copyright protection.

And the abbreviation 'SBA' may well have been registered with respect to musical instruments as a trade mark in France, but it isn't in the UK, or as far as I can tell, in the USA. Trade mark registration effectively ceases if is not used in the course of trade for a continuous period of 5 years, and so I think it is highly likely that even if SBA was once registered in France, the registration will have lapsed or not been renewed many years ago.



*If you would like to find out more about any possible patent registered in the UK at the time, you can contact the research team at the British Library for help:
Business & IP Centre London
British Library
Research Service
96 Euston Road
London
NW1 2DB
United Kingdom

Email: bipc@bl.uk
Fax: +44(0)20 7412 7480

[alastairhanson@mac.com]

Thank you so much for your help.

Best regards

Alastair