A light of hope that we will see some body shapes returning..
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Cagey
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Hmm. I'm not a lawyer, but it seems this one was a no-brainer and doesn't really mean anything to the rest of the industry. The guitars in question were clearly not counterfeits as they were deliberately branded differently. They weren't trying to fool anyone.
In a perfect world, the ones who should worry are the Chinese manufacturers who actually make counterfeit instruments intended to fool consumers into believing they're getting the real thing, with everything down to the branding duplicated. Sort of. Anyone who knows guitars can spot a "Chibson" pretty fast, but Joe Sixpack isn't always as astute about such details, and contrary to many trademark holder's understanding, this is why trademark exists in the first place - to protect the consumer. But, as far as I know, there's not a whole lot anyone can do to/about Chinese manufacturers directly beyond banning import of their products. Of course, this is usually about as effective as training cats.
The more interesting suit is still upcoming, which deals with Gibson's design trademarks. That's what Gibson's been using to threaten manufacturers of "clones". They say the shapes are theirs. Everybody else says no, they're as common as herpes, nobody owns them. Everybody and their brother has been making them for years and nobody kicked, so STFU and go away.
This is the downside of trademark. Once it has been awarded, you have legal recourse to prevent anybody from using your "marque", but it has to be defended or exclusivity is lost. In other words, if you don't complain, consent is implied, so trademark no longer exists. Gibson has only recently (within the last couple years) started bitching about a practice that has been in place for many years among a number of manufacturers, so now it's gonna be up to a judge to either tell Gibson that if you snooze, you lose, or uphold their claim.
It's tough to say which way it will go. Logic says Gibson's gonna lose, but common sense isn't as prominent a feature of such decisions as one might imagine.
In a perfect world, the ones who should worry are the Chinese manufacturers who actually make counterfeit instruments intended to fool consumers into believing they're getting the real thing, with everything down to the branding duplicated. Sort of. Anyone who knows guitars can spot a "Chibson" pretty fast, but Joe Sixpack isn't always as astute about such details, and contrary to many trademark holder's understanding, this is why trademark exists in the first place - to protect the consumer. But, as far as I know, there's not a whole lot anyone can do to/about Chinese manufacturers directly beyond banning import of their products. Of course, this is usually about as effective as training cats.
The more interesting suit is still upcoming, which deals with Gibson's design trademarks. That's what Gibson's been using to threaten manufacturers of "clones". They say the shapes are theirs. Everybody else says no, they're as common as herpes, nobody owns them. Everybody and their brother has been making them for years and nobody kicked, so STFU and go away.
This is the downside of trademark. Once it has been awarded, you have legal recourse to prevent anybody from using your "marque", but it has to be defended or exclusivity is lost. In other words, if you don't complain, consent is implied, so trademark no longer exists. Gibson has only recently (within the last couple years) started bitching about a practice that has been in place for many years among a number of manufacturers, so now it's gonna be up to a judge to either tell Gibson that if you snooze, you lose, or uphold their claim.
It's tough to say which way it will go. Logic says Gibson's gonna lose, but common sense isn't as prominent a feature of such decisions as one might imagine.
mayfly
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Yes, but perhaps no. Don't forget that Gibson took action against Ibanez in the 70s for copying headstocks. That will surely be taken into consideration. On the other hand until recently Warmoth has been copying the body shape for at least two decades. Warmoth likely just made a business decision when challenged two years ago and switched bodies instead of fighting. These other guys seem to be a bit more bloody minded about it.
So maybe the headstocks would be upheld, but maybe not the body shapes. Interested to see the outcome in any case!
So maybe the headstocks would be upheld, but maybe not the body shapes. Interested to see the outcome in any case!
Cagey
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I'm not sure a 40 year old defense is gonna hold much water. The lack of any further action over such a long period is still gonna look like implied consent, but maybe there are other cases that weren't so prominent that indicate a sincere desire for exclusivity.
We'll see. I'm kinda surprised Gibson's bitching at all. There's been some research that says in cases such as this, it's actually better for the original manufacturer to allow copying. Mimicry being the sincerest form of flattery only works to solidify the efficacy and desirability of a design, which increases its popularity and subsequent unit sales numbers. This is most obvious in the world of fashion, where some designer comes up with some ugly thing and some famous person(s) buy into it and prominently display their "good" taste, causing the hoi polloi to drool with envy. Demand goes up, counterfeiters enter the game and the piece gets more exposure, so those with the means to do so buy more of the "authentic" goods, not wanting to be accused of being Walmart creatures.
We'll see. I'm kinda surprised Gibson's bitching at all. There's been some research that says in cases such as this, it's actually better for the original manufacturer to allow copying. Mimicry being the sincerest form of flattery only works to solidify the efficacy and desirability of a design, which increases its popularity and subsequent unit sales numbers. This is most obvious in the world of fashion, where some designer comes up with some ugly thing and some famous person(s) buy into it and prominently display their "good" taste, causing the hoi polloi to drool with envy. Demand goes up, counterfeiters enter the game and the piece gets more exposure, so those with the means to do so buy more of the "authentic" goods, not wanting to be accused of being Walmart creatures.
amigarobbo
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How can you copyright the shape of a Les Paul given as it's just an standard archtop with a florentine cut?
No wonder they didn't sell any in the late 50s they looked so fuddy duddy and old, daddio. Eyeball and get hip to the new shapes and throw that cube in the dumpster.
Or something.
No wonder they didn't sell any in the late 50s they looked so fuddy duddy and old, daddio. Eyeball and get hip to the new shapes and throw that cube in the dumpster.
Or something.
amigarobbo
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I didn't want to look like I was copping a bit.
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I saw that news this week too. It's another notch in Gibson's legacy of losing lawsuits, but it doesn't really change anything in the industry at large. In most cases it's not a matter of who would win or lose. It's a matter of who would run out of money first. Think you could win in court? It will only cost you $2,000,000.00 to find out.
OP, can you please turn that light out? I'm trying to sleep in here.
OP, can you please turn that light out? I'm trying to sleep in here.
bagman67
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Aaron is, of course, correct. Even if Gibson's trademarks have been so diluted by industry practice over the last fifty years that they are no longer valid, determining that they are no longer valid is a costly legal undertaking that will be vigorously opposed by the incumbent. A separate order in the case - involving only a dispute about whether the defendant's lawyers should have revealed to Gibson's lawyers that they came into possession of a single privileged document - resulted in $22,000 in attorney's fees. Fees in a dispute over the fundamental bread-and-butter trademark at the heart of Gibson's fame could easily go two or three orders of magnitude higher. As a consumer of Warmoth products, I would rather see them invest $2 million in original products and high-quality licensed products at a price I can afford, rather than having its customers subsidize litigation against Henry Juskiewicz and his gang of MBA's.
I read the opinion granting the partial judgment to JHS. The case in question suggests without proving that Gibson's trademark/trade dress claims against manufacturers of single-cutaway guitars that closely resemble Les Pauls are no longer viable. Gibson raised a claim that JHS,the defendant, was manufacturing and seeling guitar shapes that served to dilute Gibson's trademark, but the statute under which that claim arose was repealed seven years before the case was filed. Boom, no cigar. The court also found that because guitars are identified by the manufacturer's name on the guitar headstock or elsewhere, Gibson cannot prevail on a trademark claim based only on the body shape and/or headstock profile where JHS's trade names were present both on the headstock and the body. This extends the reasoning a different court employed in the Gibson v. PRS case concerning the Paul Reed Smith Singlecut model, where the general idea of a single-cutaway solid-body guitar was found insufficient to prove a trademark infringement case.
But the Gibson v. JHS decision is really only binding as to the parties in the suit, even if the decision also gives comfort to the Agiles and other LP-clone manufacturers of the world. I am unaware of whether Gibson appealed the decision, which is a year old, and if there has been a final resolution to the case.
I read the opinion granting the partial judgment to JHS. The case in question suggests without proving that Gibson's trademark/trade dress claims against manufacturers of single-cutaway guitars that closely resemble Les Pauls are no longer viable. Gibson raised a claim that JHS,the defendant, was manufacturing and seeling guitar shapes that served to dilute Gibson's trademark, but the statute under which that claim arose was repealed seven years before the case was filed. Boom, no cigar. The court also found that because guitars are identified by the manufacturer's name on the guitar headstock or elsewhere, Gibson cannot prevail on a trademark claim based only on the body shape and/or headstock profile where JHS's trade names were present both on the headstock and the body. This extends the reasoning a different court employed in the Gibson v. PRS case concerning the Paul Reed Smith Singlecut model, where the general idea of a single-cutaway solid-body guitar was found insufficient to prove a trademark infringement case.
But the Gibson v. JHS decision is really only binding as to the parties in the suit, even if the decision also gives comfort to the Agiles and other LP-clone manufacturers of the world. I am unaware of whether Gibson appealed the decision, which is a year old, and if there has been a final resolution to the case.
Sovereign_13
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I imagine Harry Justsueeverybody with a dartboard in his office, each section of which contains a brand that makes a single-cutaway carved-top guitar.
"Who are we suing today, boss?"
*throws dart*
"Looks like...ESP."
*You may, at your liberty, mentally replace the dartboard with a giant spin-to-win carnival game, a Plinko machine with brands at the bottom instead of prizes, or other cartoonish multiple-outcome game of chance.
"Who are we suing today, boss?"
*throws dart*
"Looks like...ESP."
*You may, at your liberty, mentally replace the dartboard with a giant spin-to-win carnival game, a Plinko machine with brands at the bottom instead of prizes, or other cartoonish multiple-outcome game of chance.
bagman67
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Interesting article about the resolution of this case. Looks like they started the trial but settled before it got to the jury. Maybe Gibson doesn't want an actual adjudication that it's fulla crap. I'm linking to the MyLesPaul forum because the article is reproduced in full there, but is behind a paywall at Law360.
http://www.mylespaul.com/threads/gibson-loses-8-million-counterfeiting-claim-case-in-the-usa.398607/#post-8389508
http://www.mylespaul.com/threads/gibson-loses-8-million-counterfeiting-claim-case-in-the-usa.398607/#post-8389508
bagman67
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The one appellate decision on the matter - Gibson v. PRS, decided in Gibson's own home circuit - pretty plainly states that Gibson's fulla beans. The Supreme Court declined to hear the matter on Gibson's appeal, so that decision is the state of the law on whether a single-cutaway body can lead to confusion among consumers about what they're getting.
My view is Henry J. et al. don't want to go down the same road again, so they're just gonna keep on with the shakedowns costing so-called infringers a pile of dough and leading to last-minute "mutually acceptable settlements" when Gibson decides not to proceed to judgment. Except when, as Warmoth (apparently) wisely did, they decide to just comply with the cease-and-desist and save the money for marketing other products profitably.
My view is Henry J. et al. don't want to go down the same road again, so they're just gonna keep on with the shakedowns costing so-called infringers a pile of dough and leading to last-minute "mutually acceptable settlements" when Gibson decides not to proceed to judgment. Except when, as Warmoth (apparently) wisely did, they decide to just comply with the cease-and-desist and save the money for marketing other products profitably.
stratamania
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I read about this earlier on the other forum too. Interesting that there is a group challenging Gibson on generic shapes in the same manner that Fender was challenged.
musicispeace
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I'm going to volunteer Gibson's lawyers to go as the first group to Mars, and they aren't going to be bringing people back from Mars.
Cagey
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I don't understand the problem everyone has with lawyers, beyond some of the more opportunistic fee schedules some of them have. They're generally highly intelligent people with analytical minds who have an unusually good grasp of language, and find a certain joy in being extremely precise/literal. That's a handy skillset that's not widely distributed amongst the population, so it's worth it to hire them to work your side if you have an argument that needs winning. That it's often the most belligerent/ignorant/criminal/hateful amongst us that needs them is no coincidence, but then there's the "guilt by association" effect of working for those people. Just because a lawyer represents a lowlife doesn't make the lawyer a lowlife. Kinda makes 'em a tool, but in an ironically positive sense. I've worked with and/or known a number of lawyers over the years, and they've all been fun. I'd rather hang out with a lawyer than a marketing weenie any day of the week.
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Cagey said:
Marketing weenies? MARKETING WEENIES?
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