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Guitar companies fly into dispute over instrument shapes

News and Notes Focused on the 3 Public Faces of IP Law

  • Brand Image Protection - Trademark Law
  • Visual Image Protection - Copyright Law
  • Personal Image Protection - Right of Publicity Law

The Image Protection Law blog has been created in order to share stories and information on the legal aspects of: 1) the marketplace reputation of a company or product captured in its trademark, 2) published or publicly-displayed artwork, photography, and any created visual design, and 3) use of a person's photograph or likeness for product promotion or other commercial purposes.

The "IP3" share at least one thing in common: Image is everything. In these posts let's look at what that means in the realm of intellectual property in the news, but let's also be prepared to explore if there's something more beyond "everything." Don't forget, the intellectual in "intellectual property" doesn't mean smart or brainy, although by nature true creators often are. The word is used to refer to any creation, i.e., a "product of the mind." While this blog will be regularly updated, you are encouraged to share your thoughts on these posts.

Some of the biggest names in rock 'n' roll history have played Gibson's distinctive Flying V guitar, including Jimi Hendrix, Billy Gibbons of ZZ Top, Pete Townshend of the Who, Johnny Winter, Paul Stanley of Kiss and many more. The electric instrument looks just like its name: its narrow, V-shaped body was considered futuristic when it was initially released in 1958.

Earlier this year, Gibson filed a trademark infringement lawsuit against the parent company of Dean Guitars and Luna Guitars. Gibson alleges that Armadillo Enterprises, Dean and Luna are also engaged in trademark counterfeiting, unfair competition and trademark dilution.

Armadillo returned fire, filing its own lawsuit that seeks to have Gibson's trademarks for the shapes of its Flying V, Explorer and ES-335 guitars canceled. Armadillo argues in court documents that "some things are just too commonplace and basic for one company to claim as its property."

Armadillo also claims that Gibson has sent cease and desist orders to retailers that sell its Dean and Luna guitars.

In an interview, an intellectual property and entertainment industry attorney said there's no basis for Gibson to claim a Dean guitar is a counterfeit Gibson. He said no one buys a Dean and thinks they're actually buying a Gibson.

"Dean has made Explorer and V-shape guitars since 1977," the IP lawyer said. "Calling a Dean guitar counterfeit is ludicrous."

He added that when Gibson registered guitar shapes with the US Patent and Trademark Office back in the 1990s, it was already too late. Some companies had at that point been selling similarly shaped guitars for decades.

While his opinion is interesting, the trademark dispute will either be resolved in negotiations between the companies or in court.

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