# General Mandolin Topics > Mandolin Cafe News Discussions >  U.S. Trademark of Fern Inlay Awarded to Gibson

## NewsFetcher

The Mandolin Cafe has posted the following news release:
U.S. Trademark of Fern Inlay Awarded to Gibson

Gibson Guitar Corpration has received a Trademark Serial number #86174550 on March 24, 2015 for the Fern inlay on the F-style mandolin headstock, the Mandolin Cafe has learned. 

 

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## Delaware

So I guess The Loar has a redesign in their future?

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## Darren Bailey

I wonder if this will bump prices up of those instruments now bearing a forbidden symbol. Copyright serves a purpose, but I guess the copyright people didn't know about the wider use of this particular property.

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## mmukav

It was awarded on my Birthday! :Mandosmiley:

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## Clement Barrera-Ng

Wow.. Now when an instrument listed for sale as a 'Lawsuit' model I'd have to ask from each period.. 70s or the 2010's.

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## Tobin

Wow.  How did this happen?  Did they just sneak one past the proverbial goalie?  I can't understand how the US Patent Office could award a trademark to one company for a design that's used by pretty much all the major competitors as well (even if Gibson originally came up with it almost a century ago).  I'd think the argument could be easily made that this fern design has been in the public domain for a long enough time that awarding it as a trademark to one company is improper.  Did any competitors even know about this or have the opportunity to challenge it?

The big question that springs to mind is how close a similar design has to be now in order to infringe on the trademark.

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Tom Coletti

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## red7flag

Just wondering if anybody knows how closely the Fern will be protected?  How close a builder can come without infringing?  Heard any plans?

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## Tobin

I was wondering the same thing here.  Given that the drawing for the trademark is a fairly crude sketch, and doesn't have any dimensions or hard info on it, this seems to be pretty vague.  

It does look pretty much exactly like the fern inlay on my Ellis, though.  As much as a sketch can come, anyway.  I'm supposing mine and other pre-existing non-Gibson ferns will be exempt from any legal trouble, but I really do wonder if everyone is going to have to change their designs now.  And how much.

Is Gibson going to trademark the flowerpot too?

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## multidon

When you read the description, you could make an argument that the general shape of the headstock is included in the trademark.

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## Timothy S

Very interesting. Glad I got my Kimble Fern when I did! 

Begs the question though...is Gibson really going to pursue legal action again every maker that uses (or has used) both the Fern and F5 headstock design? I can't help but think that the lawsuits would drag out longer than our lifetimes.

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## darylcrisp

so from here on, all mandolins built with the Fern might just have a build date inside of March 23 2015 or earlier :Whistling:

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## Marty Jacobson

> Just wondering if anybody knows how closely the Fern will be protected?  How close a builder can come without infringing?  Heard any plans?


As long as they can argue that a product might be reasonably confused with a Gibson on the basis of this design, then they have a potentially good case.

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## NoNickel

Wow!  I received my infringing Duff on March 23, 2015.  Maybe that's why it was held up for a week in customs with no explanation?

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## FLATROCK HILL

> As long as they can argue that a product might be reasonably confused with a Gibson on the basis of this design, then they have a potentially good case.


You're probably right..._legally_ they may have a good case. I would bet that their (Gibson's) public image will suffer if they go after the 'little guys'. 
Ninety years ago this might have made sense; today it looks foolish and petty. JMO.

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Marty Jacobson

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## Timbofood

I agree with you Flatrock, it's a little late to start that fight without having some real image trouble. I suppose theoretically it's an infringement but, after this length of time might be a little hard to say how much damage has been done. I guess we need to wait for steveindenver to give a (free) legal opinion on this....Steve?

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FLATROCK HILL

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## T.D.Nydn

Gibson just might pursue the lawsuits,they have the money and the lawyers.look at Disney,they did the same thing,they pursued any and every infringement on their characters no matter how petty.

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## darylcrisp

so from here on, all mandolins built with the Fern might just have a build date inside of March 23 2015 or earlier
 :Whistling:

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## Andrew B. Carlson

They've got some rights to their flower pot design right?

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## mtucker

Quite entertaining...

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## sblock

The official description says this:

_Description of Mark: The mark consists of a three-dimensional configuration of a peg head of a stringed musical instrument with a curved swirl on the top left and top right, and with a fern design within the peg head in the center and a second fern design within the lower portion of the peg head.
_
Translating this into English, they seem to be claiming the full 3D shape of the peghead _in addition to the "classic" fern inlay,_ including the "curved swirl" on either side, that is, both the curleycue and the peghead scroll.  In other words, the entire F-5 peghead shape.

In principle, they can haul into court and sue anyone else for trademark infringement if their pegheads look sufficiently similar that a reasonable person might confuse them with Gibson's own.  It might suffice that someone merely copies the F-5 style peghead shape, irrespective of ANY inlay they might use!  Such as case might, or might not, be winnable in court. Very hard to say in advance.  Of course, Gibson may not actually have to sue:  their lawyers may simply send threatening "cease & desist" letters to luthiers, telling them that they're infringing on a trademark, and scaring them out of using the F-5 peghead shape. That would be chilling enough!

I would be nice to know Gibson's actual intentions behind this trademark registration, but I doubt that they will be forthcoming.

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## dcoventry

Well, huh. I can't see the big deal at some level. Here does:

There are other inlays besides Fern and Flower pot that can be done that are VERY attractive. Did Gibby include Torch and Wire? Besides that, many, gasp!, non-traditional inlays are quite striking i.e. Phoenix, Rigel, Fleur de Lys etc.  I know we as a people, tend towards the traditional much of the time, I feel a huge "who cares and move along" moment coming.

Head stock shape? The traditional F5 head stock as many achey-breaky parts, so would this be a great loss if the trademark issue is true? We seem to like snake heads, the mustache, paddles etc. We can do better for the balance, weight and artistic, if properly motivated.

Perhaps we look upon this as a water shed moment to advance and diversify the acceptability of design. However, I am a Rigel and Phoenix guy, so there!!

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## sblock

> Well, huh. I can't see the big deal at some level. Here does:
> 
> There are other inlays besides Fern and Flower pot that can be done that are VERY attractive. Did Gibby include Torch and Wire? Besides that, many, gasp!, non-traditional inlays are quite striking i.e. Phoenix, Rigel, Fleur de Lys etc.  I know we as a people, tend towards the traditional much of the time, I feel a huge "who cares and move along" moment coming.
> 
> Head stock shape? The traditional F5 head stock as many achey-breaky parts, so would this be a great loss if the trademark issue is true? We seem to like snake heads, the mustache, paddles etc. We can do better for the balance, weight and artistic, if properly motivated.
> 
> Perhaps we look upon this as a water shed moment to advance and diversify the acceptability of design. However, I am a Rigel and Phoenix guy, so there!!


Well, I think you'll find that an awful lot of us mandolin players really LIKE traditional the fern inlay, and that most F-5 owners really LIKE the shape of the F-5 peghead.  And yes, there are plenty of other designs -- and also less fragile ones, too.  But that's completely and utterly beside the point. The heart wants what the heart wants.  It's not just about originality: a classic design is a classic design. Many luthiers copy the F-5 style peghead and inlay designs because there is continuing _demand for these_. Perhaps _you_ "can't see the big deal," but maybe you're even not trying to understand? Regardless of your position, many of the rest of us sure _can_ see the big deal!! 

Will we be made to give up on any new F5-style mandolins unless they're made by Gibson?  We'll have to wait and see how this plays out.

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## T.D.Nydn

Well,Gibson patented it for a reason...yes,at first everyone infringing will get a warning letter...then....

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## MikeEdgerton

To get an idea as to how Gibson might handle this you can look at how they handled the flowerpot. There are plenty of old threads but *this* one has some comments from people that received a letter from Gibson.

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## dcoventry

> Well, I think you'll find that an awful lot of us mandolin players really LIKE traditional the fern inlay, and that most F-5 owners really LIKE the shape of the F-5 peghead.  And yes, there are plenty of other designs -- and also less fragile ones, too.  But that's completely and utterly beside the point. The heart wants what the heart wants. 
> 
> Will we be made to give up on any new F5-style mandolins unless they're made by Gibson?  We'll have to wait and see how this plays out.


Ok, then buy a Gibson if that is the metric by which you judge acceptability. I guess the heart would be willing to follow "suit" so to speak. Seriously, that's the sticking point? So the strap hanger wasn't part of this deal?  I judge by sound and comfort.

And I apologize in advance as to my prickliness. I enjoy seeing the progress of the mandolin" Bowlback a-oval to F with oval and f holes. I think there is more and better to come. In fact, I think the best is yet to come.

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## mandobsessed

> Ok, then buy a Gibson if that is the metric by which you judge acceptability. I guess the heart would be willing to follow "suit" so to speak. Seriously, that's the sticking point? So the strap hanger wasn't part of this deal?  I judge by sound and comfort.
> 
> And I apologize in advance as to my prickliness. I enjoy seeing the progress of the mandolin" Bowlback a-oval to F with oval and f holes. I think there is more and better to come. In fact, I think the best is yet to come.


I always find it funny that almost all the mandolins you see at a BG jam look essentially the same, all slight variations on a theme.  I applaud any builder who breaks the mold and tries something new...although it probably won't sell to the bluegrass crowd.  

If Gibson feels they have a case with the fern and are willing to weather the bad press that the move would generate, why wouldn't they pursue action.  I think this is aimed at the Asian makers that are eating into Gibson's bottom line as opposed to the craftspeople building in N America anyway.

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## testore

They should concentrate on just building better instruments rather than silly little unimportant features.

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pianoman89, 

Tom Coletti

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## Timothy S

> They should concentrate on just building better instruments rather than silly little unimportant features.


And more competitively priced. Going with a custom build from a single luthier ended up being cheaper than ordering a comparable model through Gibson.

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## sblock

> Well,Gibson patented it for a reason...yes,at first everyone infringing will get a warning letter...then....


I think you may be confusing a patent with a trademark.  Gibson has recently TRADEMARKED a peghead with a fern inlay.  It has _not_ patented it (and the peghead is not really an invention, so it probably couldn't be patented, anyway). The laws and regulations governing patents and trademarks are quite different.

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## sblock

> I always find it funny that almost all the mandolins you see at a BG jam look essentially the same, all slight variations on a theme.


Yeah, and all those *violins* _really_ look the same at a bluegrass jam.  I mean, who can tell them apart?  Come to think of it, those *dreadnought guitars* all look about the same.  Hey, the *b*njos* look pretty much the same, too.  And the *bass fiddles*, man, those ALL look alike to me.  Truth be told, there is typically more genuine variety in shape among the mandolins at a bluegrass festival (A-type, F-type, oval hole, ff-hole, snakehead, paddlehead, f-type peghead, etc.) than just about any other instrument!!  Reality check.   :Grin:

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BradKlein, 

Tobin

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## Dave Greenspoon

Gibson's greedy, grubby and gross grab of the fern design is outrageous. What's next? A trademark on "The"? How about the font for the script? If I ever thought I'd be interested in their product line, this action drives me away. Out of curiosity I am sending the report to my brother who is an intellectual property/patent attorney with his own firm. I'll report back if he has anything particularly interesting in response.

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Frank Farley

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## drjlove

Is this satire??? 
If Gibson starts suing little guys over the "Fern" peg head inlay, they must really be hard up. It'd be akin to McDonald's suing anyone that makes a breakfast sandwich over the the use of English muffins, eggs, and ham. I've been a long-time supporter of Gibson and owner of their products. But, get over yourselves.

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## Marvino

I would hate to think there might come a time that if you want a Gibson F-5, you would have to actually buy a Gibson F-5.    :Grin:

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Jim Nollman

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## Ivan Kelsall

Dave - I agree totally with you - but. If Gibson regard any of the parts of the design of their mandolins to be their intellectual property,they can sue anybody who uses that design or 'part' of the design for an infringement of copyright / patent - sad but true, as i'm sure your brother will tell you. Maybe if the headstock shape & design as a _'whole'_ is patented, & i include the name 'Gibson' or 'The Gibson' in that,then any design using the shape of the headstock plus the Fern inlay,but without any ref.to 'Gibson' or 'The Gibson' would be exempt from prosecution simply because the non-Gibson mandolins don't exhibit the headstock design as a 'whole',only in part. So,was the headstock design patented as a _complete_ design inc.the name,or was it patented 'bit by bit' ie. shape / inlay / name separately ?,
                                                                             Ivan

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## Emmett Marshall

The "way" this reads to me, they also have rights to the peg head design itself?

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## Emmett Marshall

I just came across this new trademark in the "Mandolin Cafe News" section:

http://www.mandolincafe.com/news/pub...s_001716.shtml

Has Gibson trademarked just the inlays, or the entire peg head design? I did read the whole thing, but I'm still confused.  The article states the inlays are trademarked now, but as I read the information further and look at the drawings it "appears" that they have included the scrolls as well. Any thoughts?

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## Tom Coletti

(Apologies in advance for 2 A.M. crassness of the highest degree...)

It says that "Gibson Guitar Corporation has been awarded Trademark #86174550 for the Fern inlay _on F-style mandolin headstocks_," so maybe it just means that unless it was grandfathered in before the trademark date, an _F-style_ mandolin headstock can't have the Fern inlay without a court process server knocking on your door to ruin your day. So by the looks of it, technically an A-style headstock could have the Fern inlay or an F-style headstock can have any other inlay, but I won't be risking it for fear of unnecessarily yelling into a telephone about dead inventors when I don't have to.

Either way, this trademark seems less like a way to maintain competitive mandolin innovation and more like a middle-aged housewife getting in a cat-fight because petty Betty Bitter Whatsherface is wearing the same dress as her in the Class of '92 Reunion.

It's like Ford suing someone in 2015 for making a replica 1932 Model A sedan; even if Ford had a patent or trademark way back when they actually made the car in a large enough quantity to satisfy the demand, it would have expired by now, so it's all one big lethargic Mulligan.

Furthermore, if other people just stopped making the Fern inlay, which they will, I don't see Gibson making any significant monetary gains with this patent. I can't imagine that a lot of people would buy a Gibson JUST to have Fern inlay. And then in 10 or 20 years or whenever Gibson stops paying to renew the trademark, people will just make Ferns again like they always did, and my question then will be, "What was the point?"

--Tom

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Petrus

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## Robb Todd

Seems to cover the curved part of the peg head as well which will cause a few issues.
Does this mean builders like Ellis,collings, gilchrist and dudenbostel etc can't use the peg head design they have had to date. Might change the price dynamic of pre patent mandos as well if the design is thought to be desirable enough.

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## Canoedad

Any trademarks in curved scrolls have long been abandoned.  But the Patent and Trademark Office just rubberstamps Gibson's claims anyway.  The builders can't do anything about it and Gibson knows it.  It would cost too much.  But you know who could stop this silliness?  The mandolin buying community.

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## Robb Todd

Seems to cover the scrolls as well, this could affect most builders.

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## Petrus

> Description of Mark: The mark consists of a three-dimensional configuration of a peg head of a stringed musical instrument with a curved swirl on the top left and top right, and with a fern design within the peg head in the center and a second fern design within the lower portion of the peg head.


Definitely covers the peg head shape as well as the inlay. But note that the inlay drawing on the image is just of a particular fern configuration and doesn't include the flowerpot or other "vine" style configurations which are easily modified.  The main thing is the shape of the head itself.  Other makers will just have to use their imagination in carving more unique shapes, which is a good thing since (imo) the shape is _way_ overused by everybody who is not Gibson.  But to some extend I do feel like Tom Coletti -- it's as if the Stradivarius family patented the scroll shape on the violin head!

It also seems to be mainly an issue affecting F-styles, which almost seem as if they demand this particular peg head style (Gibson hasn't patented the body scroll have they?), while A styles have more variety in head shape.  (I don't recall ever seeing an A style with that particular head shape in fact.) Let's hope they don't patent the snake head!

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## bribhoy

I'm not a lawyer, but have spent a long time looking at legal contracts and I think the imporant word in the Trademark is "and". The Trademark has been granted for "...curved swirl on the top left and top right, and with a fern design within the peg head in the center and a second fern design within the lower portion of the peg head" 

So the amrk applies only if all elements are present, i.e. the curved swirls and the fern design and the seccond fern. My interpretation would be that if you only have a single fern on an f-shaped peghead, you're good.

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Ivan Kelsall, 

Tom Coletti

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## Petrus

I hope that's the correct interpretation, but the language could be read as either/or: either the inlay design or the overall shape or both. But then they would have have applied for two separate trademarks maybe.

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## Tom Coletti

http://www.mandolincafe.com/forum/sh...nted-by-Gibson

There's another thread discussing the scroll aspect specifically.

All in all, retrospectively calling "dibs" on a small feature that not only contributes little to the overall product but also has basically become a commonplace option in every manufacturer's catalog nearly a century later just seems like the third grade schoolyard bully showing up at a college campus long after flunking middle school and making all the graduate students rabbit-ear their pockets and surrender their lunch money. Yeah, you might get a few dimes for a bag of Chex Mix, but the backlash will be severe.

--Tom

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## Bigtuna

> Seems to cover the curved part of the peg head as well which will cause a few issues.
> Does this mean builders like Ellis,collings, gilchrist and dudenbostel etc can't use the peg head design they have had to date. Might change the price dynamic of pre patent mandos as well if the design is thought to be desirable enough.


I can only assume that Ellis/ Precision Pearl make Gibson's fern inlays, so I would like to think they would cut him a break. Everyone else may not be so lucky.

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## Charlieshafer

It'll be interesting to see if Gibson even tries to defend it. If I make that exact configuration, and Gibson's attorneys send me a letter, they still have to go to court if I ignore the letter. That gets expensive, and the chances aren't too bad that I'd win, as the design has almost become public domain, as was mentioned in a post elsewhere regarding this subject. The comical side of this is that it has no financial ramifications for Gibson or others, it just makes them look foolish. The pegheads that are out there aren't going away. Experienced buyers aren't going to be swayed one way or the other, and newer buyers of mandolins usually look PacRim due to costs. It'll be the independent musician's badge of honor to go up on stage with anything other than that headstock and peghead.

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## PJ Doland

I hope to God they trademarked the shape. Maybe other makers will stop duplicating a design that's so prone to breakage.

Good riddance.

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## T.D.Nydn

Gibson did this not to make money,,but so others won't make money.the over saturation of makers and fern copiers finally reached the top for them I imagine.they are trying now to protect what's theirs,and I don't blame them.ive had copyright problems before in the past,people are quick to jump on someone else's idea to make money.the entire F design is gibsons and they should patent it.if you think about it,everyone who makes a F  mandolin is essentially trying to make a Gibson design,,if you came up with an oringinal mandolin design,you would patent it and protect it also I'll bet.

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## HoGo

> Gibson did this not to make money,,but so others won't make money.the over saturation of makers and fern copiers finally reached the top for them I imagine.they are trying now to protect what's theirs,and I don't blame them.ive had copyright problems before in the past,people are quick to jump on someone else's idea to make money.the entire F design is gibsons and they should patent it.if you think about it,everyone who makes a F  mandolin is essentially trying to make a Gibson design,,if you came up with an oringinal mandolin design,you would patent it and protect it also I'll bet.


Of course you have right to get your design trademarked, but doing so after almost hundred years is silly (I wonder how the US patent office reviews such old things, but I've seen some really odd patents issued by them, the law is probably quite outdated...). There are many dozens of copies per one real Gibson in hands of musisians so they came 80 years too late. But their whole policy seems to evolve in wrong direction... They already dropped banjo line, it's only matter of time when they do the same with mandolins (like they already did with Flatiron). Their workmanship went really downhill in last few years and with ever growing competition this move is not going to save them.

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## choctaw61

Uh oh! Has the mandolin god offended  his mass followers and worshippers?Lol.Do we not claim he is creator of THE SCROLL! Do we not call it THE GIBSON FERN! It is after all THE GIBSON! By our own confession we have confirmed what the mandolin god claims to be true.Imagine that!! Wow 21st century corporate world.GREED?

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## MikeEdgerton

This is much ado about not very much. We had the same discussion a few years back about the flower pot and the bell shaped truss rod cover. It didn't seem to have a whole lot of impact on the industry.

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BradKlein, 

Hadji36, 

Timbofood

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## T.D.Nydn

I don't think this will effect Gibson at all.people seem to think that if only Gibson now can produce a scroll and fern peghead,that they're going to put a strike on gibsons?i doubt that.you know and I know that anyone who makes a F style mandolin is copying Gibson.my own opinion,for the longest time i always thought why get a F mandolin with someone else's name on it?no matter how good it is,it is still a copy.

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## NursingDaBlues

For corporate attorneys who, in their ceaseless quest to fund their personal lifestyles, give counsel that will double the price of mandolins, oh Lord we give thanks.

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DataNick

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## JeffD

> Wow.  How did this happen?  Did they just sneak one past the proverbial goalie?  I can't understand how the US Patent Office could award a trademark to one company for a design that's used by pretty much all the major competitors as well (even if Gibson originally came up with it almost a century ago).  I'd think the argument could be easily made that this fern design has been in the public domain for a long enough time that awarding it as a trademark to one company is improper.  Did any competitors even know about this or have the opportunity to challenge it?.


I would guess this has been researched and argued and debated and backed and frothed between patent attorneys for a while, generating astronomical fees.

Its a tough one. The only reason the fern peg head is used is that is looks like the Gibson icon. Nobody came up with it in parallel by accident and said "oh no, that looks just like..." So everyone that uses it uses it knowing where it came from.

OTOH at some point it has become part of a tradition, and perhaps therefor public domain. Where is that point? Is it at the point where the general public no longer associates the tradition with the brand? Well that hasn't happened yet. Everyone knows its a Gibson design. Yet the community also knows that not every fern is a Gibson, so there is nobody making mistaking every fern for a Gibson. 

It seems to me it is a little like the fellow that suddenly starts to take legal action about his neighbor's encroaching fence, after years of ignoring it. Nobody argues the survey, nobody argues the encroachment, yet there is a point, either in law or in common sense, where one loses the right to complain.

I see no clear bad guy or good guy in this. Just suddenly applied clarity where the ambiguity benefited many.

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## JeffD

As I read the filing excerpt it is not just the fern design, and not just the peg had shape, but the two used in conjunction that is claimed. Presumably one can use the fern inlay design on a peg head of a different shape.

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## JeffD

> This is much ado about not very much.


As I mentioned in the other thread, it is just suddenly applied legal clarity, where the ambiguity benefited many.

What Gibson might do (here I am giving Gibson advice  :Laughing:  ) is to offer an irrevocable non-exclusive license to the design, for a one time very very affordable fee, to anyone that asks for it. Just enough of a fee to cover the incremental paperwork. This kind of thing is done all the time. They don't lose their ownership, the feature is shared with the community, but what is accomplished is this - nobody else can claim ownership of the design, and take legal action against them or anyone else.

Its kind of like buying the lot next door, in order to keep it undeveloped.

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## Dave Greenspoon

> Maybe other makers will stop duplicating a design that's so prone to breakage.


Channeling Fred Rogers: Can you say RIGEL? I thought you could!

It was only by accident a long time ago that I placed my Rigel next to an F-5 and immediately grokked the reason for the peghead style. It made me smile to realize that I'll never have to worry about that type of peghead repair. :-)

So what's next for the Big G? Trademarking the term "Florentine" along with "The", the numbers 4 and 5, and the letters A and F?

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## Petrus

> I can only assume that Ellis/ Precision Pearl make Gibson's fern inlays, so I would like to think they would cut him a break. Everyone else may not be so lucky.


Or Ellis could just decide to no longer make the Gibson inlays and let them find someone else to do it, unless they're being paid a whole lot for the work.  Let Gibson scramble for a replacement that does the work as good, while Ellis and others go on to new designs.

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## Petrus

> Gibson did this not to make money,,but so others won't make money.the over saturation of makers and fern copiers finally reached the top for them I imagine.they are trying now to protect what's theirs,and I don't blame them.ive had copyright problems before in the past,people are quick to jump on someone else's idea to make money.the entire F design is gibsons and they should patent it.if you think about it,everyone who makes a F  mandolin is essentially trying to make a Gibson design,,if you came up with an oringinal mandolin design,you would patent it and protect it also I'll bet.


I wouldn't be surprised if they trademark the entire F body style.  That would throw a lot of makers into a tizzy.

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## Canoedad

As of right now Two Old Hippies is still picturing a Weber Fern on their website.   http://webermandolins.com/
It will be interesting to see if it remains.

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## Tobin

> Its kind of like buying the lot next door, in order to keep it undeveloped.


That would be great if they had done it before everyone else had already built their condos on that lot.  But in this case, since many other makers have been producing F5 Ferns for decades, it's a little late for that.

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## JEStanek

The Weber design is similar but different. All you really need is an extra leaf or changed angle and they aren't the same.

Jamie

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## JeffD

> That would be great if they had done it before everyone else had already built their condos on that lot.  But in this case, since many other makers have been producing F5 Ferns for decades, it's a little late for that.


While I agree, I really can see Gibson's side as well. I have at least some sympathy.

I can imagine this kind of dialog, our hypothetical condo owners and developers saying: "Yea, we knew the land wasn't really ours, never was, even though you never formally claimed it we all knew, but you haven't said boo in so many years, so look, just be quiet and go away. Its a good location and we like it and we're here and what are you going to do?"

I am not saying anyone did this or said anything like this - I just don't see any obvious bad guys, Gibson or builders, in this.

Because Gibson of course has known the design as been in use for many years. Its not like they suddenly noticed the encroachment.

So perhaps the builders might say, "hey Gibson, you snooze you lose." And perhaps they would be right, but then who is the bully. 

One could say that folks have been making significant money over the years based on the designs owned by another, the attractiveness and advantages of the designs specifically being the association with that other.

I seriously am not trying to infer any malice. I am showing, I guess, that an assumption of malice could be applied to either side, and in either case it would be ridiculous conjecture.

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## greenwdse

> I'm not a lawyer, but have spent a long time looking at legal contracts and I think the imporant word in the Trademark is "and". The Trademark has been granted for "...curved swirl on the top left and top right, and with a fern design within the peg head in the center and a second fern design within the lower portion of the peg head" 
> 
> So the amrk applies only if all elements are present, i.e. the curved swirls and the fern design and the seccond fern. My interpretation would be that if you only have a single fern on an f-shaped peghead, you're good.


I agree. The word "and" and "with" are clear. Other than that, the other stuff can be interpreted quite broadly. What I'd like to know is, as a plant enthusiast, what would and wouldn't be considered a "fern?"

----------


## JeffD

> The Weber design is similar but different. All you really need is an extra leaf or changed angle and they aren't the same.


And those who use the fern inlay on a differently shaped peg head would not be using Gibson's trademarked design.

----------


## NoNickel

> They should concentrate on just building better instruments rather than silly little unimportant features.


 When someone comes up with a design, or a "look" that becomes immediately recognizable, it becomes very valuable.  Think of the Nike "swoosh" or "Coke" (and their bottle desgin), or MacDonald's arches.  These attributes of those products have little to do with the actual product, but are enormously valuable.  So the Fern inlay is not a "silly, unimportant feature."  (I sure hope not.  It was a $250 upcharge on my new Duff.)  If Gibson created it then it was theirs and they had the right to  protect it.  What Gibson did wrong is wait way too long to claim it.  I really don't see how they got this Mark with so many others using it.  Some of the bigger companies should have have filed resistance with the PTO, but it looks like they didn't or if they did, it wasn't effective.

----------


## JeffD

The fern, the flower pot, the torch and wire, they are all ultimately arbitrary designs, whose only value is in evoking the quality of Gibson instruments with which they are associated. New wonderful floral and other patterns are not that hard to come up with, really, and a new design could become iconic to the mandolin on which it appears, in which case it would behoove the builder to trademark it.

----------


## Tobin

> I can imagine this kind of dialog, our hypothetical condo owners and developers saying: "Yea, we knew the land wasn't really ours, never was, but you haven't said boo in so many years, so look, just be quiet and go away. Its a good location and we like it and we're here and what are you going to do?"
> 
> I am not saying anyone did this or said anything like this - I just don't see any obvious bad guys, Gibson or builders, in this.
> 
> Because Gibson of course has known the design as been in use for many years. Its not like they suddenly noticed the encroachment.
> 
> So perhaps the builders might say, "hey Gibson, you snooze you lose." And perhaps they would be right, but then who is the bully.


Interestingly enough, when it comes to real property, there is precedence for this.  It's called Adverse Possession.  If you openly build on someone else's land and use it for long enough, and the rightful owner doesn't challenge you, you eventually have a claim to ownership.  It's not a principle I particularly agree with, but it is well-established in the legal world.  

I just wonder if there is any crossover case to be made with respect to trademarks.  Perhaps a good attorney could argue this angle successfully, viz. the issue of another maker having used the Fern design for several decades without any challenge from Gibson.  Even if it wouldn't be a claim of ownership by the other maker, it could perhaps be argued as at least a right to continue using the design?

----------


## Jim Hilburn

The only reason there are so many mandolin builders in the first place is that Gibson for all practical purposes abandoned making mandolins, not completely but definitely anything resembling the F-5 of the Loar era. That was what the small numbers of players in the 60's and 70's wanted but there was no source so they took matters in their own hands. Even in 1970 it was a nearly 50 year old instrument and it was more like you were making a replica than infringing on their product.

So now demand for mandolins has grown exponentially and Gibson want to claim it as their own.

----------

Killian King

----------


## JeffD

> Interestingly enough, when it comes to real property, there is precedence for this.  It's called Adverse Possession.  If you openly build on someone else's land and use it for long enough, and the rightful owner doesn't challenge you, you eventually have a claim to ownership.  It's not a principle I particularly agree with, but it is well-established in the legal world.  
> 
> I just wonder if there is any crossover case to be made with respect to trademarks.  Perhaps a good attorney could argue this angle successfully, viz. the issue of another maker having used the Fern design for several decades without any challenge from Gibson.  Even if it wouldn't be a claim of ownership by the other maker, it could perhaps be argued as at least a right to continue using the design?


It is an argument parallel to adverse possession. Seems like the case could be made.

If Gibson were to make the magnanimous gesture I mention above it would all be solved without all the attorney fees. 

I can imagine a world where such a parallel to adverse possession were to be successfully argued. The avalanche of trademarks would be overwhelming as companies large and small panic and rush to quickly define their borders and chase away the squatters. Patent and trade mark attorneys would do well to argue adverse possession in order to drum up business.

I am not against lawyers - my goodness when you need one you need one, but they do make good money when people can't figure out a way to play nice with each other.

----------


## Gregory Tidwell

If I ever got around to building my own mandolin I think I would put a poison ivy inlay on it anyway, so fooey on Gibson for hogging all the great flora.   :Smile:

----------


## Tobin

> If Gibson were to make the magnanimous gesture I mention above it would all be solved without all the attorney fees.


Heh, I suppose it's possible that this was their intent all along.  In which case, it may have been a stroke of genius (evil genius, that is) to wait this long.  Now that the Fern design is well-established in the market, all the other makers that want to continue building Fern designs now find themselves in a pickle.  And for a reasonable licensing fee, or a small royalty fee for each build, they could continue doing it.  Gibson suddenly gets to pocket money for doing absolutely nothing at all.  Whereas, if they had trademarked it when it was new, they would have essentially cut off any potential for copies to be made by anyone else in the first place.  So at this point, since it's rather too late to use a trademark as an exclusive protective measure for their design, they can use it as a source of profit.  The only question is whether others will play ball.

----------


## Nevin

This copywright is probably close to meeningless.  To get the protection of copywright law you have to be pretty agressive in defending it.  This involves hiring lawyers to patrol the market looking for people who may be infringing and sending them stop letters.  It can cost a lot of money.  The only instrument manufacturer I know of who does this is Rickenbacker.  It would be hard to say they have been defending the design when they let it be copyed for almost 100 years without saying anything.

----------


## JeffD

My understanding is that the concept of hitting a key board and the symbol associated with that key showing up on a screen is specifically owned by the person or persons who first thought of it. The owner offered one time non-exclusive licenses, allowing unlimited commercial use of the concept, computer manufacturers and anyone who applied. If memory serves, $75. Under $100. One time for ever. Everyone made money, nobody was screwed.

----------


## JeffD

> This copywright is probably close to meeningless.  To get the protection of copywright law you have to be pretty agressive in defending it.  This involves hiring lawyers to patrol the market looking for people who may be infringing and sending them stop letters.  It can cost a lot of money.  The only instrument manufacturer I know of who does this is Rickenbacker.  It would be hard to say they have been defending the design when they let it be copyed for almost 100 years without saying anything.


Well yes, but what it does achieve is that someone else can't easily say claim the design and go after Gibson. It adds clarity where there was ambiguity. And those who have benefited from the ambiguity can certainly feel inconvenienced.

----------


## Spruce

> The comical side of this is that it has no financial ramifications for Gibson or others, it just makes them look foolish.


...which they've been doing _relentlessly_ since 1986.

----------

doc holiday, 

G. Fisher, 

Killian King

----------


## outsidenote

I think it's premature to be negative towards Gibson about this.  It is their design and they are entitled to copyright it.  If they didn't and someone else did, they might be put in a position of not being able to use their own design.  Gibson has been heavily copied through the years and has been amazingly tolerant.  As to the quality of their recent mandolins - I don't think that is really in doubt.

----------


## T.D.Nydn

The only people who will come out ahead in this are those lawyers.at one time I went to collage to be a divorce lawyer,and I dropped out to become an artist and a jazz musician.when I think about it,I've made some very bad decisions in my life.

----------


## plexi

We have had paten infringements it cost $400k plus court fees. All you have to do is make one change and Gibson will loose the case. It could be as simple as adding .001" to the headstock. It's ugly any way you look at it.


Steve.

----------


## Marvino

From United States Patent and Trademark Office

What is a trademark?
Trademarks protect words, names, symbols, sounds, or colors that distinguish goods and services from those manufactured or sold by others and to indicate the source of the goods. Trademarks, unlike patents, can be renewed forever as long as they are being used in commerce.

----------


## Richard Mott

I don't know patent & trademark law, but I am surprised that after Gibson's nearly 100 years of failure to assert a proprietary claim over the design, the company wasn't deemed to have waived any right to it. Especially given the recent four decades of mandolins proliferating with that design. With adverse possession, you have to act promptly and can't sit on your rights. I can't see how this would hold up to a legal challenge.

----------


## Billgrass

Any pickin' trademark legal eagles out there care to comment on the real implications? One thing I find curious is that it was awarded so long after the design was put into use. A copyright would have long expired, if that would have been possible for a design. Also, under copyright (and I think trademark law?), you have to actively protect your property or you lose your rights. To my knowledge Gibson has not been protecting the Fern from use by other builders, so wouldn't that nullify their rights?

----------


## Jeff Hildreth

Originally, Gibson's inlays were outsourced.

I am curious if Gibson, or some supplier,  "designed" the fern.  Any insight ?

----------


## Scott Tichenor

I've merged another thread that is essentially discussing the same questions relating around this issue. Lets please not water the information down by starting further separate discussions.

For the record, in the article we listed this exact wording:

_Although one of the pages linked to below lists the Trademark as Published for Opposition, one legal source for this article told us that time period has passed and the Trademark is binding._

We've had a couple of people in the industry tell us this is not correct. It is in fact true that a large manufacturer everyone here would know has been advised by their legal team the Trademark is binding. That is a fact, whether those people are correct or not. It's also no surprise that there are differing opinions by lawyers and those that think they know more than them. The Mandolin Cafe is not the arbiter of the Trademark in question. We have no opinion on the matter. Those that share the view it is not binding (or is) are more than welcome to post their opinions here for public evaluation vs. contacting us with your side of the story. Our interest is that it 1) became known, and 2) that it be discussed. That goal is being accomplished.

----------

Billgrass, 

JEStanek, 

Mandomusic

----------


## Darryl Wolfe

> Originally, Gibson's inlays were outsourced.
> 
> I am curious if Gibson, or some supplier,  "designed" the fern.  Any insight ?


Gibson.  I have the drawings...that was their purpose

----------

JEStanek

----------


## billy_v

My Breedlove full-gloss FF don't need no stinkin' fern.   :Mandosmiley:

----------


## Killian King

> The only people who will come out ahead in this are those lawyers.at one time I went to collage to be a divorce lawyer,and I dropped out to become an artist and a jazz musician.when I think about it,I've made some very bad decisions in my life.


I think I see where you went wrong. It was probably inevitable that you would end up an artist when you attended Collage instead of College.  :Grin:

----------

T.D.Nydn

----------


## Hendrik Ahrend

My advice to independent builders: Just keep copying the vintage F5 head stocks, since this patented Gibson head stock drawing is not very close to the original anyway. :Laughing:

----------


## Tom C

About 10 years ago, Gibson did this with the flower pot. Supposedly, the design had to look different from like 50ft away as not to be mistaken for a Gibson. Builders were notified not to use it and many luthiers stopped using it. But Gibson never enforced it and builders started using it again.

----------


## Canoedad

> The Weber design is similar but different. All you really need is an extra leaf or changed angle and they aren't the same.Jamie


Not really correct.  The legal test is Substantial Similarity, or at least it was when I took IP in law school.  It's complicated and expensive for anyone who wants to test Gibson's claim.  Probably much wiser to stay away, which is what they are counting on.

----------


## stevedenver

> Not really correct.  The legal test is Substantial Similarity, or at least it was when I took IP in law school.  It's complicated and expensive for anyone who wants to test Gibson's claim.  Probably much wiser to stay away, which is what they are counting on.


finally a bit of rationale thought......

just like Robert johnsons lyrics, if this design hasn't been already registered, and there are no other claimants to origin and ownership of the design, I don't believe there is a lapse/public domain type argument, but there could be, ....ie since no one else has bother to patent the design and shape (not unlike the Les Paul body shape, deja vu PRS lawsuit) Gibson may well have done so in a timely manner. I dunno legally speaking. this is like policing a design or trademark, ala Kleenex versus facial tissue, Coke versus cola, the design, may well have been lost, or 'diluted' by common usage, but.....

I too am not an IP lawyer, but I can tell you this, that for all those with braggadocio and swagger posts above,

you will sing out of the other side of your mouths when you receive a Cease and Desist letter, or, have to hire a lawyer, who tells you not only how much that will cost to argue, but, that if you lose, you will pay Gibson's attorney fees and for infringement.  This is why IP cases are a very big stakes deal.

And this, my friends is exactly why the design is now patented-it will, rightly or wrongly, eliminate a large number of boutique F look-a-likes.  The purpose of this type of strategy, imho, is not only to sell product, but to keep others from selling competing products.

No names, but I know of 2 builders (that all would likely know)  that used similar headstock designs to 2 different guitar makes, and they don't anymore......due  this very tactic.

As a builder, the simple question is, "do I want to spend 50K in federal court, or, might I prefer to simply change things?"......now be honest, wwyd????  "how many fs do I have to sell to pay my lawyer........

or, "should I just do my own fern design and headstock......close but not identical......."

and how many buyers will be swayed from a non-identical Gibson design in their purchase decisions???

----------


## Spruce

> No names, but I know of 2 builders (that all would likely know)  that used similar headstock designs to 2 different guitar makes, and they don't anymore......due  this very tactic.


Are we talking like, 20 years ago?
If "yes", it was waaaaaay more than 2...

----------


## allenhopkins

Probably I'm naive, but I think that if there were a trademark or patent infringement case, the fact that Gibson has waited until forever to assert ownership, while thousands of F-model headstocks with fern inlays have been manufactured by others, would make their case weaker.

Gibson missed the boat in not patenting/trademarking the F-model body shape.  That horse left the barn 75+ years ago.  All that's left for the company that originated F-model mandolins, is to claim exclusive rights to details -- truss rod cover shapes, inlay patterns, headstock profiles -- while their best true innovation, the F-model, carved-top, f-hole mandolin, is being cranked out by the thousands by factories and individual luthiers in a dozen or more countries.

Tempest in a teapot, IMHO.  Late in the game to get litigious, if that's in fact their intention.

----------


## NoNickel

I'm a corporate attorney and (unlike what one poster implied) am not rich.  I am as puzzled by Gibson's actions as anyone here. I am trying to figure out, that if I worked for Gibson (rather than a large midwestern agricultural cooperative), how and why I would advise my client to take this action.

Gibson certainly invented the F style mandolin, and designed the flowerpot, the fern and most of the curves that many of us love.  And back when those innovations were first implemented, they had every right to say "this is ours, and y'all keep away."  But they did not do that.  People have been copying the F5 and F4 and all of the cosmetic and engineering elements for years.  I can't imagine that they have any desire to drive any builders out of business, and in fact probably what will happen is that they will send out some cease and desist letters and that will be that.  The Gibson-looking Fern inlay will likely become less common, as builders will likely either redesign or stop advertising "Fern" inlays (only doing them when specially requested), which is all Gibson probably wants.  All it would take is for one builder to spit in their face and continue to agressively advertise a substantially similar Fern inlay, and suffer the consequences of some lost profits and payment of Gibson's and their own attorney's fees to put the real freeze on this.

Under the law, Gibson owns the "common law" rights to the fern mark, because it created it.  Just like a song you wrote is owned by you.  But, just like the song, if someone else copyrights/trademarks it first then they own it.  Where everyone missed the boat here is by not opposing the registration.  Fender recently lost a five year litigation when it tried to register its stratocaster and telecaster designs when a large number of other guitar makers opposed it.  Fender had allowed copying for too long the court said, and the shape was in the public domain.  The same thing could have happened here, but face it.  We are talking about mandolins, not electric guitars.  And probably no one wanted to stand up and fight with Gibson on this.

What I really think is behind Gibson's play here is making sure that some troll doesn't sneak one by them and beat them to the PTO on the Fern mark and then ask Gibson to pay a fee to buy their own property back.  In Gibon's defense, it could be something as simple as: "Hey, this is ours, let's just put everyone on notice that we own it."  If this is the case, that probably still means cease and desist letters, because you have to make an effort to protect your mark or you could lose it.

One poster put it correctly, all good F5's are really just trying to copy this iconic, traditional design.  What would really suck, is if Gibosn took the next step and claimed the F5/F4 mandolin shape -- scroll, points, headstock, f holes -- as theirs.  This would not be totally without precedent as they did take PRS to court on the Les Paul single cutaway shape.  And they had some success but ultimately lost.  If that were to happen: we must let loose the hounds of h***.

----------

MikeEdgerton

----------


## allenhopkins

> I would hate to think there might come a time that if you want a Gibson F-5, you would have to actually buy a Gibson F-5....


But if you want an "F-5," you can buy *a JBovier.*  Gibson hasn't even trademarked "F-5," if you can believe it.  While I assume that Audi can't build a "Coupe de Ville," and Burger King can't sell a "Big Mac," anybody can build a mandolin and call it an F-5.

----------


## mtucker

> What I really think is behind Gibson's play here is making sure that some troll doesn't sneak one by them and beat them to the PTO on the Fern mark and then ask Gibson to pay a fee to buy their own property back.  In Gibon's defense, it could be something as simple as: "Hey, this is ours, let's just put everyone on notice that we own it."


Seems to make the most sense out of all of this...

----------


## stringduster

Corporations just love flexing their "stuff" don't they?
Anything you can do to make it harder and harder for the small, independent builders
in this country to earn a living. I say "phooey"!

----------

Rush Burkhardt

----------


## FLATROCK HILL

> New wonderful floral and other patterns are not that hard to come up with, really, and a new design could become iconic to the mandolin on which it appears, in which case it would behoove the builder to trademark it.


I can think of a leafy design that might work on the Colorado builds. Well I could a minute ago anyway. What were we talking about?

----------

NoNickel, 

Randolph, 

Tobin

----------


## stevedenver

> Corporations just love flexing their "stuff" don't they?
> Anything you can do to make it harder and harder for the small, independent builders
> in this country to earn a living. I say "phooey"!


don't get me wrong, im no lover of Gibson or bullying, but, I do have a soft spot for property rights.

so, how do you feel about other countries taking designs and selling knock offs?
how do you feel about folks who squat, claiming land to be theirs?

Gibson, uncontrovertedly originated the design, basically, their property (as far as we know-neverever seen anything pre-Orville like a F or fern design-but it wouldn't surprise me if it was out there.

But, Gibson hasn't policed it in terms of copying, but its ok to take it?  Well, maybe earlier, but not now.

If in fact the rights have been lost, as pointed out, its kinda late once the patent office grants a patent on the design. BTW< this is happening on a lot of tech, including cooking techniques, and many other things that were available or practiced, but not registered.

"F-5", probably not distinctive enough, F-5 , F-150,???? "Iceberg Greenburg, whats the difference?"

----------

Bernie Daniel

----------


## T.D.Nydn

And all those variations you mentioned are GIBSONS....

----------


## stevedenver

> Are we talking like, 20 years ago?
> If "yes", it was waaaaaay more than 2...


Those were just the builders I knew and spoke to personally about this tactic.
I know there were many more.

----------


## JeffD

> Corporations just love flexing their "stuff" don't they?
> Anything you can do to make it harder and harder for the small, independent builders
> in this country to earn a living. I say "phooey"!


I guess I don't see how this makes it harder for the small independent builders to earn a living. I don't think there are any potential buyers that will be put off because the mandolin they want made by xXx looks slightly different. Especially in light of the fact that everyone in the community soon enough will know why. Ok, the fronds hang down instead of up, and the scrolls are gone, and they are called monilophyte mandolins. But is someone really going to hold up purchase because of it?

I think the price of non-Gibson Ferns already made may go up, as they will become increasingly rare. It is, sadly perhaps, time for new traditions.

----------


## Robert Smyth

I totally think it is within Gibson's rights to trademark the Fern.  I only wonder why they didn't do it back in the '20s.  Like it or not, as beautiful and as well-crafted as some of today's F-5 mandolins are, they've been producing and making money off of Gibson's original work and that basically amounts to theft.  It seems crazy that some of the posters here are giving grief over Gibson laying claim to their intellectual and artistic property. 

To be fair, didn't Gibson and every other guitar manufacturer out there steal their guitar designs from Martin?  One finger points and three point back, right?

----------


## Jim Hilburn

I said this several years ago when a then Gibson employee was touting that the F5 was "ours". 
Everyone who had anything to do with the creation of the F-5 is dead!

----------


## Jim Hilburn

Henry Eagle touched on this point. If you make your peghead as close as you can to an original 20's F5 it will bare no resemblance to what Gibson makes now.

----------

Hendrik Ahrend

----------


## T.D.Nydn

If your going to make a peghead like a '20's F 5..your still copying Gibson,!!,,,

----------


## FLATROCK HILL

> If your going to make a peghead like a '20's F 5..your still copying Gibson,!!,,,


Is it possible that your missing some subtle sarcasm? :Wink:

----------


## Spruce

> If your going to make a peghead like a '20's F 5..your still copying Gibson,!!,,,


Gibson is copying Gibson....

----------


## Clef

I wonder if Gibson is going to mail everyone a roll of duct tape to cover up the fern inlay on the non-Gibson mandolins.

Inlay won't go away and it will be cool seeing something new and different from the builders out there.

----------

Bernie Daniel

----------


## Bernie Daniel

> Corporations just love flexing their "stuff" don't they?
> Anything you can do to make it harder and harder for the small, independent builders
> in this country to earn a living. I say "phooey"!


It seems strange that you would want to deny a corporation like Gibson trademark rights to their own intellectual property.  By your logic then wouldn't "small independent" songwriters (and singers) be able to use songs of major recording artists without regard?
I think NoNickel is on the mark when he notes that Gibson is just making certain that they claim their own intellectual property before someone else does.

----------

DataNick, 

Timbofood

----------


## Bernie Daniel

> Gibson is copying Gibson....


And loving every minute of it!   :Smile:

----------


## Bernie Daniel

> .....Inlay won't go away and it will be cool seeing something new and different from the builders out there.


I agree!

----------


## Petrus

I'm not a fan of "corporate greed" as such but Gibson is hardly a monster international conglomerate (and, afaik, use no GMOs in their instruments, so far.)  I too hope this will inspire more creativity in luthiers and less hide-bound copycat thinking.  Creativity brought us the Giacomel, Monteleone, Mowry, Phoenix, the whole Breedlove streamlined style, etc.

----------


## JEStanek

I think Hot Hide Bound Mandolins have the best tone.  I doubt this is corporate greed.  Seriously, compared to their guitars, what percentage of Gibson's income comes from mandolins... a fraction of a percent???

Arguing over timeliness of the trademark makes sense, but Gibson wanting to crush all other mandolin competition just doesn't.  There's no way they could keep up with the demand.  

Personally, if we're talking traditional inlay designs, I prefer the torch and wire over the fern...  I like a lot of the newer ones that are being dreamed up by new builders as well much better, too.

Jamie

----------

Bernie Daniel

----------


## Jim Hilburn

Admittedly the F-5 is a unique case among instruments. Most pegheads are basically rectangles with some form of identifying shape across the top. Sometimes the sides are straight, sometimes curved. With flattop guitars it is often reminiscent of Martin while archtop guitars are more Gibson inspired but steering clear of the moustache.
However the F style mandolin is both iconic and considered by most to be the only correct look for the instrument. In my view most attempts at a different look fall short of the traditional.
As far as inlay, while I have only done a couple of actual ferns I'm just not very creative or artistic and usually do some form of re-combining to get something unique.

----------


## MikeEdgerton

I've been scrolling back through the old threads from the Flowerpot discussions in 2004 complete with answers from Charlie Derrington regarding the process then. You could pretty much merge those threads with these. I do want to share The Old Wave answer to the flowerpot. I will add you don't want to just look at this on your phone. You need to open it on a desktop PC that allows you to enlarge the image a bit. Otherwise you miss some of the minute detail in the inlay and engraving.

----------

JEStanek

----------


## Jim Hilburn

The original, before there was a Gibson Mandolin-Guitar Mfg Co.

----------


## Jim Hilburn

Here's my half and half. I guess they can write a cease and desist letter for the top half.

----------


## Glennly

The registration was issued based on a claim of "acquired distinctiveness" pursuant to Section 2(f) of the Lanham Act, the U.S. trademark statute.  To establish this to the satisfaction of the Trademark Examiner, Gibson had to claim "substantially exclusive and continuous use" for at least the five years immediately preceding the application.  The trademark examiner probably did not conduct a full independent survey of the landscape, so s/he relied on whatever Gibson provided.

Should Gibson attempt to enforce its registration against a thrid party, that party can produce evidence that the Fern and headstock design has been used by third parties, as well as surveys demonstrating that relevant consumers, while they may know that the fern and headstock design was originally used by Gibson, do not associate the design with a single source, sa opposed to a merely aesthetic feature.  IN other words, consumers know that a number of builders use the fern design and don't assume that, just because a mandolin has that design, it must be a Gibson..  Thus, I think the registration may be vulnerable to a challenge.

In a separate issue, some years back, Gibson had tried to reclaim exclusivity in the trademark dobro, by trying to get everyone to use the term "resonator guitar."  While this may have prevented builders from calling their merchandise "dobros," it doesn't seem to have affected the mass of musicians and fans.

Glenn
(a better trademark attorney than mandolinist, but I keep trying)

----------

Charlieshafer, 

DataNick, 

G. Fisher, 

JEStanek, 

NoNickel, 

Tobin, 

Tom Coletti, 

Tom Haywood

----------


## G. Fisher

Glenn,

According to the way the trademark reads. Would it be fine to use the shape of the peghead with a different inlay?

----------

Timbofood

----------


## Timbofood

So Glen, are you saying (in broad strokes) that this is really kind of a non issue for most small builders and there likely will not be repercussions to the guy who makes ten a year. Now, those who make hundreds, if not thousands, may have some cosmetic issues to "modify"?
Not owning one, nor planning on owning one I don't think the "Fern Police" will be knocking at my door. Should I have the wherewithal to have something built, I have to go with something which will compliment my inlay at the left. Tulips perhaps, lilies?

----------


## FLATROCK HILL

> Should I have the wherewithal to have something built, I have to go with something which will compliment my inlay at the left. Tulips perhaps, lilies?


Yes...Ask your builder to "Lily The Guild".

----------

Timbofood

----------


## Don Grieser

Builders continued to use the flowerpot after that big dust up. This is probably much ado about nothing in the end.

----------


## Jeff Hildreth

"The original, before there was a Gibson Mandolin-Guitar Mfg Co. 


Attached Thumbnails Attached Thumbnails Click image for larger version.  Name: imagesRVX5JB0L.jpg  Views: 10  Size: 6.7 KB  ID: 133323   
The original, before there was a Gibson Mandolin-Guitar Mfg Co. "

These are the inlays which I referred to in my earlier post as being outsourced by Gibson.

If I remember correctly the maker was a Turk..   The crescent moon and stars a common theme.

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## Petrus

> There are other inlays besides Fern and Flower pot that can be done that are VERY attractive. Did Gibby include Torch and Wire? Besides that, many, gasp!, non-traditional inlays are quite striking i.e. Phoenix, Rigel, Fleur de Lys etc.


The breakage issue of the F-type scroll heads is generally addressed by adding a shim between the wood and the veneer with the grain running perpendicular, to add some strength in that area.  I think Siminoff suggests this in his book.

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## Canoedad

> The registration was issued based on a claim of "acquired distinctiveness" pursuant to Section 2(f) of the Lanham Act, the U.S. trademark statute.  To establish this to the satisfaction of the Trademark Examiner, Gibson had to claim "substantially exclusive and continuous use" for at least the five years immediately preceding the application.


So Gibson (and possibly their attorney) lied to the PTO.

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## Charlieshafer

It would seem that they would have had to have lied. As Glennly said, this one is so easy to dispute that it just seems plain odd that Gibson would even bother. It's just another example of how corporations get lost in the fog as opposed to making real improvements in either their products or in this case, their policy towards small dealers. This just costs them money; making mandolins available to the small shops (without the big shop purchasing minimums) would only make them money.

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## Bernie Daniel

> So Gibson (and possibly their attorney) lied to the PTO.


Why?  All they would have to do is show the build or sale of one F-5 Fern per year in the proceeding 5 years?

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## Jim Hilburn

That's the "continuous" part, but not the "exclusive" part.

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G. Fisher

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## Jim Hilburn

I may be wrong but I think Gibson went about 40 years without using the fern, from around 1930 when they were using up the Loar era stock but used reverse tuners and drilled right through the inlay till after the 70s era which had flowerpots. There's probably an exception in there but I haven't seen it.

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## Ivan Kelsall

It makes me wonder just how 'absolute' the patented headstock "Fern" inlay design is. It could be argued that any "Fern" design not _absolutely_ identical to that in the patent sketch, would be exempt,or,have Gibson been granted a 'generic' patent that covers _any design_ of Fern ?.That isn't made as clear as maybe it should have been. Maybe a Fern with a 'bug' on it would be exempt ?, :Grin: 
                                                                                                                                                                   Ivan :Wink:

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Timbofood

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## jimmy powells

I personally don't like that particular fern inlay as a whole and never have done. The bit which extends around the truss rod cover is just far too much so a simple fern which would not infringe trademark would be much better.
I do like cosmetic things such as bound fingerboards and headstocks and certain fingerboard inlays but when you have a gorgeous sunburst mandolin of any make and all the razzamataz on the headstock it is just far too much and cheapens it in my view.

I have a guitar by The Loar and I love it but hate the sickly green abalone headstock fern. I much prefer the white pearl short fern seen on Aria  and similar mandolins

That's my humble opinion.

Jimmy Powells

UK

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## Rush Burkhardt

:Popcorn:

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## MikeEdgerton

It is simply amazing some of the conclusions people come to when they read semi-legal and legal documents. By the way, I just saw Elvis talking to Curt Cobain at the Mickey D's down the street. I knew they faked their deaths.

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## Jim Hilburn

I don't know, Mike, are you questioning Glenn's ( the trademark attorney) explanation? Canoe dad speculated that Gibson might have lied when it came to "exclusively" using the inlay in question. Well, I Googled "fern inlay" and I quit counting at 20 the number of builders who have used the inlay in question from guys who made their first to importers who sell thousands of instruments. Seems like a fair question to me. But then we can't all have as clear an insight as you I guess.

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Steve-o

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## T.D.Nydn

I guess it's just a matter of time now until one of the builders on this forum gets some kind of feedback from Gibson and reports it here......

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## JeffD

> That's the "continuous" part, but not the "exclusive" part.


That is a dangerous perspective. I am not sure how to work it but I don't like the idea that if a few people have been stealing from you and you for the most part ignore it, you can claim it later, but if a lot of people steal from you then you have no right to claim it ever again. 

So if you want to steal someone's idea, get a lot of people to join you.  

Confusing.

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## JeffD

> However the F style mandolin is both iconic and considered by most to be the only correct look for the instrument. .


What???

Most bluegrassers maybe. More than a few American mandolinists, its possible - .. Certainly it is iconic, and certainly popular, but the only correct look for a mandolin from which every other look is a departure? I don't think so.

If any mandolin look would be the "only" or the standard to most mandolinists sucking wind on the planet today, the design that comes to mind first when you say mandolin, that would be a bowlback.

I played the mandolin for several years before I ever saw an F style with that iconic headstock in the flesh, and though I was familiar with the design from the pictures in Mandolin World News.

Or maybe I misunderstood. If you are saying the peg head expected _on an F style_, then I do see your point. They work the best on an F style and seem to me to match the over all aesthetic energy. In fact one might argue they look out of place on an A style, where a paddle head or a snakehead look better.

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## Jim Hilburn

Jeff, have you looked at the marketplace recently?

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## T.D.Nydn

I grew up in the 50s playing a bowlback as a kid.later on, in the 60s and 70s...if you wanted a decent mandolin,the choice really was Gibson.i have a mandolin bros, catalog,you had to mail away for it then from the early 80s and pretty much the only mandolins were gibsons...all of a sudden this increasing explosion of makers start coming out with there F. Models,and I got news for you,A models too,which Orville came up with..they were copying Gibson,,they are protecting what's is there's in light of a major out of control flood of copies now....

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## Jim Hilburn

TD, if in the 60s and 70s you wanted a decent mandolin, you were out of luck.

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## T.D.Nydn

Hey Jim,,that's actually really funny..but I'm saying back then that was your choice,,there was like one kind...

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## Jim Hilburn

TD, that's the point! They weren't even trying to make a mandolin like their own company ( not really their own company, the original was sold off to CMI in the late 40s and then to Norlin around 70. All the rights were transferred with the deals) had made back in the 20s. That's why others started making those types of mandolins, not to rip off Gibson, but to make "decent" mandolins.

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## JeffD

> Jeff, have you looked at the marketplace recently?


Well obviously anything I might see would not be a representative example - but the few stores I frequent that have a decent selection of quality mandolins, most of them are A style mostly paddle heads. A few two pointers and a few Fs.

Not that this means anything, but I was in Guitar Center today and they had three mandolins for sale, all under $300.00 and they had an information placard on "chose your bluegrass instrument" - under mandolins it said that the A style was the most popular mandolin while the F style was the one chosen most by professionals. Not that Guitar Center knows anything about anything, but it does indicate the popular fancy. (In other words GC doesn't usually miss really obvious things, so it must not be really obvious.)

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## Jim Hilburn

I guess I don't consider Guitar Center "the marketplace".

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## T.D.Nydn

Jim,,,yeah,,ok we know there are a upper group of luthiers today that are really talented in what they do,,everybody on this forum can probably come up with at least five super makers producing instruments today,,blah,blah,what I'm saying is yes,they are better ,gulp,,ahhh,,than the G word..but I think the early luthiers first started copying F5 's more because they were enamoured with the design and the challenges making one...

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## JeffD

> I guess I don't consider Guitar Center "the marketplace".


No of course not. But it indicate that s fair number of mandolin purchasers who don't consider the f style scroll peghead to be the default.

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## Jim Hilburn

TD, I respectfully disagree. This goes back to the beginning of everyday guys wanting to play bluegrass, and there were very few instruments available that had the sound that was desired. And Gibson was in no way responding to this demand.

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## MikeEdgerton

> I don't know, Mike, are you questioning Glenn's ( the trademark attorney) explanation? Canoe dad speculated that Gibson might have lied when it came to "exclusively" using the inlay in question. Well, I Googled "fern inlay" and I quit counting at 20 the number of builders who have used the inlay in question from guys who made their first to importers who sell thousands of instruments. Seems like a fair question to me. But then we can't all have as clear an insight as you I guess.


Actually the *two* attorney's in this thread are the one's that are making the most sense.

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## Jim Hilburn

Mike, I haven't read every word of every post in this thread. So please enlighten me with the legal highlights.

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## T.D.Nydn

Well Jim,yeah,maybe,,to best to honest ,the first  non -G  ,F 's I remember seeing were actually at bluegrass festivals in the late 70's and early 80's..

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## Jim Hilburn

The first F style I ever saw was in 1972 and it was made by Doug McKee who I was taking guitar lessons from. I had never heard much bluegrass and knew nothing of Loars or Monroe. However Doug filled me in and told me that if you wanted a decent mandolin you had to make it yourself because no one else was.
That's when I knew someday I'd make one...or more.

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## David Lewis

Mine too

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## Petrus

It's a mistake to compare the great work of individual workshop luthiers, who may make a dozen instruments in a year (?), to the mass production requirements of a company like Gibson which makes far more. It's apples and oranges. Even if Gibson has a small in-house workshop style department that exclusively makes their high-end models (actually that's all they make these days isn't it?) they have to figure in the cost of all the rest of the corporation overhead to keep that little shop going.

I gather that Gibson is very secretive about their production numbers, but looking at their presence in the marketplace, they must be producing exponentially more units than a small luthier could.  You'll find Gibsons in many GCs and online at major retailers like Sam Ash, Sweetwater, ZZsounds, etc., while you usually won't find an Ellis or Weber or Collings in those places.  They only brands that seem to have comparable market presence as Gibson produce substantially lower-end (sub-$1K) models, e.g. Kentucky, Breedlove, and so forth.  So compromises must come with higher quantity and a larger corporate overhead; there's no way to avoid it even if Gibson does their sincere best to make a great product.

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## Rush Burkhardt

IMHO this move by Gibson is ill-conceived, and will come back to bite them. 

The theory of the size of the mandolin marketplace has been discussed many times on this forum. (Certainly the "It's Not a Ukelele" t-shirt [mine's on the way] speaks volumes.) By biting-the-small-hand-that-feeds-it, Gibson uses money and the bully-pulpit to announce to the mandolin community its disdain. I can see wanting to protect the flower-pot and fern and their "exact style", [and it seems that protection has been pretty closely observed in the case of the flower-pot] but to go after the Florentine design of the headstock seems a step too far.

I do have experience in the "corporate world" where form is often off-set by function. Maybe the legal staff just needs more work?
 :Popcorn:

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## Jim Hilburn

Not knowing corporate trademark law, for all I know Gibson might very well have the right to claim the Fern as their own.
But how many Loar era Ferns did they make? 50? maybe 75? Then they abandoned it for over 50 years till it became painfully obvious there was a mandolin market they had been ignoring.

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Rush Burkhardt

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## Bernie Daniel

> It's a mistake to compare the great work of individual workshop luthiers, who may make a dozen instruments in a year (?), to the mass production requirements of a company like Gibson which makes far more. It's apples and oranges. Even if Gibson has a small in-house workshop style department that exclusively makes their high-end models (actually that's all they make these days isn't it?) they have to figure in the cost of all the rest of the corporation overhead to keep that little shop going.
> 
> I gather that Gibson is very secretive about their production numbers, but looking at their presence in the marketplace, they must be producing exponentially more units than a small luthier could.  You'll find Gibsons in many GCs and online at major retailers like Sam Ash, Sweetwater, ZZsounds, etc., while you usually won't find an Ellis or Weber or Collings in those places.  They only brands that seem to have comparable market presence as Gibson produce substantially lower-end (sub-$1K) models, e.g. Kentucky, Breedlove, and so forth.  So compromises must come with higher quantity and a larger corporate overhead; there's no way to avoid it even if Gibson does their sincere best to make a great product.


I think mostly you see so many Gibsons because they have been making them for over a century and they have accumulated.  I'll guess the current annual output of Gibson mandolins is pretty modest.  Probably more than a single luthier working on his own of course.  OTOH certainly much less then the *combined production* of the small, independent guys.

I would not want to make a guess on the number but David Harvey actually demos many of the new ones on his Facebook page -- so I'm sure you are not seeing very many mandolins made each day in Nashville?

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## banjoboy

What's next? Is Gibson gonna go after a trademark on "The"?

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## Mark Wilson

> What's next? Is Gibson gonna go after a trademark on "The"?


I was thinking the same. 

Seems no one disputes that these F5 design elements are Gibson trademarks and claiming them as trademarks seems reasonable to me even if it is decades late.

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## Spruce

> Seems no one disputes that these F5 design elements are Gibson trademarks....


...oh, sure they do.  

And--especially with guitar designs--have successfully done so in litigation(s), as well...

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## JeffD

To be specific, its the fern inlay design combined with the head stock scrolls. Per the wording I don't see that either is protected when used alone. Perhaps in other legal decisions, but not in this one.

It may be ill conceived from a business strategy point of view, I don't know. But I think they are within their rights to do it.

If it bites them they will regret it. My own guess is that it will have very little effect on anything, in the big picture.

I would love to see some headstock designs by other makers become iconic. That would really be great. I really love the Collings comb-over, for example. And the Weber "celtic" knot inlay is easily recognize, and kind of fun.

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## Jeff Hildreth

It has long been my opinion that whatever the current GIBSON CORP does is done  in order to enhance the value of the CORP (its stock) for eventual sale.
Nothing they do surprises me.

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## stringduster

To Steve Denver ands a few others, the reality about "patents" is the same for most disagreements, whoever has the most money wins. 
In 1970 I was just out of college in Ohio and basically a leather working hippie. I opened my own storefront across from Ohio State and ran it under the name "The StrapWorks" for several years until moving to Colorado where I did business under that name for a few more years before moving on to other things. Several years ago a good friend with a vintage music store asked if I would make mandolin straps for his shop since I still had most of my tools. I agreed. Shortly there after I opened up a Facebook page using my old name "The StrapWorks". It wasn't long before some guy in a closeby state who sold NYLON WEBBING products, informed me that HE held the name and that I needed to change MINE. He was concerned that someone in the market for tow ropes, and stuff might confuse his six figure business and huge warehouse with my one man workshop based out of my garage. First he suggested I change MY name to "Strap Works", dropping the "the" and separating Strap from "Works", which I did after some hesitation. That wasn't good enough. After another round of  THREATS  he decided that I needed to "drop" the "s" as well. .Then, so as not to create confusion, I changed my business name to "The Strap Works OF MONTANA".I told him that I had used the name "The StrapWorks" since 1970! before he was probably, most likely even born. I tried to work thru the myriad and confusion of contacting the State of Ohio's Board of Taxation to resurrect old records proving that "I" and not HIM had previous title to the name. I found out very quickly how much money it would cost for me to do all this, again, being a lone craftsman just getting by. So WHO WON? YOU guess. I finally said "to hell with this guy" and changed my business name to Mandolin Straps of Montana. I LOVED the name I used for all those years. They were part of my history. And to give it away because I couldn't afford to defend it from a monied guy with time to hassle a nobody like I was, is.......AMERICA at it's best. That is how patents work in the REAL world.

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Petrus

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## Charlieshafer

On an unrelated front, there is a flip side where the little guy wins. This involves the bicycle world, where way back in the late 80's, three hippie welders from Somerville, Mass., working for Fat City, started welding some titanium frames. They named their little company Kestrel, and were smart enough to get a trademark. Later that year they were walking around the floor of the bicycle trade show , too broke to afford a booth, trying to get some interest. They came around the corner, and lo and behold, a huge display by a well-heeled company also called Kestrel. They all met, with the big guys trying to do the posturing thing. The little guys had the trademark, so the big guys had to shell out a relatively huge sum of money to buy the name. The three little guys simply changed the name of their company to Merlin, used the cash to buy all the equipment they needed to get the business going, and the rest was history. 

The moral of the story is pretty simple. Got a good name? Trademark it; it's pretty cheap when done right away.

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Timbofood

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## Petrus

Maybe they should focus on getting the "Loar" name trademarked too.  Just saying.  :Whistling:

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## Vincent Capostagno

The real teeth in this trademark will be seen when Customs seizes shipments containing scrolled headstocks with Ferns.  The independant luthiers are probably not a threat and may be able to obtain a letter of permission upon request.

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## Tom Coletti

> Maybe they should focus on getting the "Loar" name trademarked too.  Just saying.


Loar was a person who worked at Gibson for a few years, not intellectual property of Gibson itself. Gibson probably couldn't even trademark the name Orville at this point without a certain popcorn manufacturer rolling up its sleeves and throwing the first punch (though the popcorn and mandolin industries are entirely separate and I believe there are clauses that deal with trademarking in different fields.)

--Tom

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## T.D.Nydn

There is no question at all that most,by far, F model mandolins are made to look just like Gibsons,the design is there's,,they can copyright the whole thing,,and like I said before,maybe the A model design also.

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## JeffD

> It has long been my opinion that whatever the current GIBSON CORP does is done  in order to enhance the value of the CORP (its stock) for eventual sale.


You are probably right.

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## Glennly

> Glenn,
> 
> According to the way the trademark reads. Would it be fine to use the shape of the peghead with a different inlay?


I am not saying anything in terms of legal advice, as there are a great number of factors, many of which I'm unaware of, but which also include the aggressiveness of the plaintiff and the defendant's willingness or ability to fight what could be a very expensive battle.

That being said, the legal standard for trademark infringement is likelihood of confusion among the relevant consumer base as to source or sponsorship.  Identity is not required.  On the other hand, the peghead shape has been ubiquitously used for scrolled mandolins and I think would almost unquestionably be viewed as an aesthetic choice, which makes the mandolin look better and be more marketable.  As such, no one could claim exclusive rights to it.

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G. Fisher

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## Glennly

> So Glen, are you saying (in broad strokes) that this is really kind of a non issue for most small builders and there likely will not be repercussions to the guy who makes ten a year. Now, those who make hundreds, if not thousands, may have some cosmetic issues to "modify"?
> Not owning one, nor planning on owning one I don't think the "Fern Police" will be knocking at my door. Should I have the wherewithal to have something built, I have to go with something which will compliment my inlay at the left. Tulips perhaps, lilies?


Again, Timbofood, I am not providing legal advice, just my seat of the pants opinion on whether the registrations could be successfully challenged.  Most builders, especially independent ones, wiould probably be wise to make the business decision not to poke the bear.

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Timbofood

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## Glennly

> There is no question at all that most,by far, F model mandolins are made to look just like Gibsons,the design is there's,,they can copyright the whole thing,,and like I said before,maybe the A model design also.


The issue is solely that of trademark at this point.  regarding the build of the instrument itself, that is considered a useful design, which is not eligible for copyright and, of course, all patents on the original design have long since expired.

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## Glennly

It's extraordinarily hard to prove lying.  Gibson would merely argue that the use was _substantially_ exclusive and that they consider the other designs out there to be insubstantial or to have been infringements in the first place.  Of course, the next question would be, why then haven't they objected previously?  Allowing third parties to use your claimed mark without objection could be seen as abandonment of exclusive rights, or as evidence that the senior user is not being significantly harmed by such use.

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## NoNickel

> Again, Timbofood, I am not providing legal advice, just my seat of the pants opinion on whether the registrations could be successfully challenged.  Most builders, especially independent ones, wiould probably be wise to make the business decision not to poke the bear.


I agree with Glenn.  If I were a builder, I would tread lightly here.  But in an actual litigation, i think Gibson would have a real problem with people who have been using the mark prior to the registration.

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## stringduster

Bernie you're mixing apples and oranges if you want to compare an insignia to a song. Or her name to an insignia. Mine visitations tell me then when it comes to one or the in the other slight variations to alter the shape of an insignia or adding or deleting   Letters to make a product name slightly different or by changing the spelling for instant

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## MikeEdgerton

Back in post 94 NoNickle wrote:




> What I really think is behind Gibson's play here is making sure that some troll doesn't sneak one by them and beat them to the PTO on the Fern mark and then ask Gibson to pay a fee to buy their own property back. In Gibon's defense, it could be something as simple as: "Hey, this is ours, let's just put everyone on notice that we own it."


I suspect that's probably closer to what is driving this than anything else. This isn't going to diminish the competition, nobody is going to stop building mandolins because they can't use the fern inlay on a scrolled headstock. 

Many years after the flowerpot and bell shaped truss rod hullabaloo you can still buy flower pot inlay and bell shaped truss rod covers. Most big builders simply designed around the problem. I'm sure they didn't lose any customers because of it.

The mandolin business is small potatoes for Gibson. I'm sure that Henry sits back and cringes over the things that weren't done in the past to protect the Gibson intellectual property but the vast majority of the things that Gibson developed that now define the market are well beyond their grasp. Others are building entire lines that use older Gibson brand names. That has to create some concern in their minds and I believe your seeing a reaction to that. 

In the end even with the nashing of teeth this will have as much effect on things as the flowerpot and truss rod cover. Very little.

----------

JEStanek

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## Scott Tichenor

> I'm sure that Henry sits back and cringes over the things that weren't done in the past to protect the Gibson intellectual property...


Such as...

So, so many choices for outrage on the internet, eh?

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## MikeEdgerton

Well yeah.

----------

Charlieshafer, 

FLATROCK HILL, 

Jim Hilburn, 

Petrus, 

sblock, 

Timbofood

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## Scott Tichenor

Let me try that again. Didn't check if their searches expires, which they do. That link pointed to this:

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Charlieshafer, 

JEStanek

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## MikeEdgerton

I was thinking more of this one.

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## Petrus

Then there's "Givson" ... no idea about the status of that one.

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## Petrus

> Bernie you're mixing apples and oranges if you want to compare an insignia to a song. Or her name to an insignia. Mine visitations tell me then when it comes to one or the in the other slight variations to alter the shape of an insignia or adding or deleting   Letters to make a product name slightly different or by changing the spelling for instant


It's a complicated field indeed which is why people study the field of copyright/trademark law for years in law school and get highly paid to figure these things out.

The songwriting world is another thing entirely and it has its own insane complexities.  You can copyright a melody but not a chord succession, for instance.  In the mid-20th century, as rock and folk was becoming commercialized, it was quite common for performers to "borrow" very heavily without attribution, or to use a melody in the public domain and copyright it as their own, with or without minor variations.  (E.g. Aura Lee --> Love Me Tender)

http://ask.metafilter.com/122822/Wha...lan-steal-from

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## Tom Coletti

So, question regarding_ The Loar_ trademarking the name: one of the characters in a webcomic of mine is named Loar, but I should be fine, right? It looks like the name in conjunction with the "The" in the field of stringed musical instruments is the full recipe of what constitutes the trademark, rather than just the name "Loar" itself in other contexts.

--Tom

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## Glennly

> So, question regarding_ The Loar_ trademarking the name: one of the characters in a webcomic of mine is named Loar, but I should be fine, right? It looks like the name in conjunction with the "The" in the field of stringed musical instruments is the full recipe of what constitutes the trademark, rather than just the name "Loar" itself in other contexts.
> 
> --Tom


Trademarks are protected against "use in commerce" of confusingly similar marks, i.e., use in connection with the sale of goods or services.  Use in a literary work, such as a web comic, would not constitute trademark use and, in any event, would be protected under the First Amendment freedom of speech provisions, even if you were specifically referring to Gibson or its products.

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## patersondave

some of you may know that ferrari successfully sued and stopped a small outfit from making replicas of 50's ferraris. in this litigious world, whoever has the most connected lawyers wins the case. it's a great thing that there are other peghead designs than ferns.

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## NUGGET

It seems that many are wondering how Gibson will legally stop other builders.   I'm sure that they don't want to go to court either, but Gibson knows it will cost anyone big bucks in the form of legal fees just to begin the litigation.  Not sure how many custom builders will have the funds or time required to fight it out in court.

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## MandoJason

that is beautiful NoNickel! im sure it sounds just as nice as it looks...

Im sure it will be easy enough for luthiers to work around this by just slightly altering a couple minor details in the fern inlay design. maybe Gibson can't keep up with the quality, innovation and expertise of the top small shop/single mandolin luthiers these days and this might be an effort to tip the scale back in their direction a bit? either way its my favorite inlay design.

Does anyone know if/how this changes the sale of a non-gibson fern inlayed mandolin (i.e. can we still buy a used mando fern on the cafe for instance?)

does the patent just prevent luthiers from making new mandos w/ this inlay or do patent restrictions apply to the sale of existings?

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## sblock

> that is beautiful NoNickel! im sure it sounds just as nice as it looks...
> 
> does the patent just prevent luthiers from making new mandos w/ this inlay or do patent restrictions apply to the sale of existings?


No, no, no.  As many others have previously discussed in this thread, this is a TRADEMARK we're talking about, not a patent!  The laws governing trademarks and patents are quite different.

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## Blues Healer

"How the mighty have fallen!"

----------

