# General Mandolin Topics > General Mandolin Discussions >  Gibson Trademarking the F-5 Body Shape??

## EdSherry

The Café front page has a link to a request Gibson filed back in 2014 with the US PTO to trademark the F-5 shape.  

I for one do not now associate Gibson with the F-5 design (I have a Flatiron F-5 that I bought in 1984 that is my main F-5), and the avowed purpose of trademark law is to prevent consumer confusion as to source.

Whatever the merits of such an effort would have been back in the mid-1920s when they first came up with the shape, it strikes me as peculiar (to say the least) to seek to trademark the shape nearly 90 years later, after an entire industry has been built up making F-5-shaped instruments.  One can lose a trademark in a term  if it becomes "genericized."  (Two well-known historical examples are (cellophane and aspirin.)I would expect the same would be true for a shape.

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## John Soper

Can't wait for this discussion to unfold!!

 :Popcorn:

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## sgarrity

They lost the PRS lawsuit over the Les Paul body shape.  At this stage in the game this seems like a really stupid move on Gibson's part.  They're barely even making mandolins these days.  I guess Henry just likes spending money on lawyers!

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billkilpatrick

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## TC-in-NC

I saw that too.   :Confused:   Makes me wonder if this is somehow connected to their recently obtained patent for the fern logo.  Just speculating, but it seems to me that someone at Gibson is trying to find creative ways to bring in more $$$$.  Get the patent, then charge folks for the right to use it.  This one could get very interesting!   :Popcorn:  

I'll be sitting by, enjoying my F-5 clone (The Loar) and watching the action  :Mandosmiley:

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## mrmando

Methinks this particular hoss left the corral long ago, but what do I know?

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## fscotte

It's public domain by now.  No chance.

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## FLATROCK HILL

> It's public domain by now.  No chance.


 http://www.mandolincafe.com/forum/sh...FERN+TRADEMARK

...Just in case you were absent for this recent 8 page discussion.

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## Emmett Marshall

First the "Fern" and peg head, and now the whole body? I'm really surprised by these actions. Do you think they plan to shut down all others who are making copies of the F5?  Guess my Kentuckys are going to become "outlaw" mandolins pretty soon.

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Joey Anchors

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## Andrew B. Carlson

"Only a Gibson is legal enough."

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Timbofood

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## f5loar

> "Only a Gibson is legal enough."


In the USA in a court of law you can pretty much ask for anything you want.  Does not mean you will get it.

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Joey Anchors, 

Mandobar

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## TEvans

I guess I just find Gibson's whole PR strategies off-putting.  From online dealers not being able to show the Gibson logo or show their new stocks of Gibson instruments, to the fern/headstock, and now the whole body shape.  

Maybe the legal team is just bored?

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## Ivan Kelsall

Maybe the "A" style body shape next ?,
                                                    Ivan

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## HoGo

> Maybe the "A" style body shape next ?,
>                                                     Ivan


No, next they will patent use of guitar strings on mandolin!

Read their application:



> The mark consists of the uniquely shaped three-dimensional configuration for the body portion of the mandolin with a curved base, rounded body shape, with a top and bottom point at the right of the mandolin body and stylized ornate scroll design at the top left of the mandolin body and f-holes, and the shape of the the headstock with an stylized ornate scroll design on the top, as illustrated in the drawing by the solid lines. The guitar strings, bridge, and tuning pegs as shown in broken lines are not a part of the mark and serve only to show the position and placement of the mark


Looks like their lawyers don't know guitar from mandolin... What a shame!

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## MysTiK PiKn

I thought they made all the mandolins anyway. or was that epi. or was that tloa. or was that ketuky. or was that esmahn. or was it tm.

maybe patent the lute? retroactive? hey why not.

great biz model. clever marketing. huh? the mark? duh....  isn't everything manu'd in china?  licensed by ? so all privates are busted? 

just babbling here, maybe. welcome - to the machine.

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## fscotte

> http://www.mandolincafe.com/forum/sh...FERN+TRADEMARK
> 
> ...Just in case you were absent for this recent 8 page discussion.


I think these are different issues.  An example would be Ford trying to patent the shape of a pickup truck.  But a unique identifying symbol on the truck or a Ford car could be protected - such as the Mustang horse.

And it's not just the F5 they are going after, they are seeking patents on a mountain of items, even the shape of instrument headstocks.

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## Fretbear

Hope their "Lumpy" design is safe as well.......

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Mickey King

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## Bigtuna

> Maybe the "A" style body shape next ?,
>                                                     Ivan


Maybe not the body, but the snakehead headstock is likely in the works.

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## barry

"GOODS AND SERVICES CLASSIFICATION 

INTERNATIONAL CLASS	015	FIRST USE DATE	12/31/1924	FIRST USE IN COMMERCE DATE	12/31/1924	CLASS STATUS	6-ACTIVE"


Maybe I am missing something.  Obviously, the shape was used prior to this date.

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## GTison

Trademark and Patent are two distinct things.  I could see where a patent on the design would be out of date, maybe.  But a trademark is different.  A quick look at the link below suggest that if a company has not used a trademark for 3 years it is considered "abandoned".  The "snake head" would be abandoned because they ceased production for more than 3 years.  However, did Gibson ever really cease production of the F5 style, for more than 3 years?  I am no vintage expert, but it seems like the answer to that might be that Gibson maintained production of F5 style (shape) mandolins all the way back to 1923.
http://www.inta.org/TrademarkBasics/...FactSheet.aspx 

Some other builders out there better lawyer up and contest this such as Collings and Weber.  Foreign entities who have standing should also speak up.   Small builders would also be affected if this is granted. Perhaps the individual luthiers could contest it as an association to defray legal expense.  The acceptance of the "fern" inlay trademark granting is proof that if not contested Gibson could be granted this trademark.  This could be interesting to say the least.  As an extreme, if granted; what would be the alternative to the F5 style? Builders shifting to 3 point designs?

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## Mandobar

Collings paid Henry years ago.  That door is closed.

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NoNickel

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## thistle3585

My guess is they don't want to collect royalties on a design.  They want to sell the company and its not worth anything if their not building instruments but it is if they own the patent rights to key aspects of the instruments.

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## Jim Hilburn

They may have not made an F through WWII for 3 years but could claim a special circumstance in that case. Otherwise it seems the always made at least a few. And quality won't play into the picture.

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## Capt. E

> My guess is they don't want to collect royalties on a design.  They want to sell the company and its not worth anything if their not building instruments but it is if they own the patent rights to key aspects of the instruments.


Perhaps the mandolin shop is not making much money and they want to sell or franchise out the right to use the design and even the "Gibson" name to another manufacturer. It would be worth a lot of money to someone if the design was part of it...perhaps someone in China? This may be continuing effects from the Nashville flood.

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## bobrem

I am going to patent my body shape.

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k0k0peli, 

Mark Wilson, 

Marty Jacobson, 

TC-in-NC

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## G. Fisher

It looks like according to this document that Gibson didn't show enough evidence to gain the trademark. 

http://tsdr.uspto.gov/documentviewer...Index=3&page=1

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## atbuckner21

A good friend of mine is a really respected luthier in middle TN. He told me that the overall Gibson reputation among the luthrie community is declining because of moves like this.  Couple that with ridiculous price increases without quality improvements, and you have a recipe for trouble. Gibson was the standard bearer for so long, but moves like this turn me off to the maximum level. Rather than work toward inventing a time machine to rescue lost causes, perfect your current model, service those who love your product, and uphold the tradition of excellence created 100 years ago.

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## JeffD

> This could be interesting to say the least.  As an extreme, if granted; what would be the alternative to the F5 style? Builders shifting to 3 point designs?


It won't change a thing, likely. I don't think Gibson has any intension of stopping anyone from doing anything - except claiming it was their idea. My perception is that this isn't intellectual property protection as much as legacy protection.

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## TEvans

> It looks like according to this document that Gibson didn't show enough evidence to gain the trademark.


So that's it then, yeah?  It has already been denied?

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## FLATROCK HILL

> It won't change a thing, likely. I don't think Gibson has any intension of stopping anyone from doing anything - except claiming it was their idea. My perception is that this isn't intellectual property protection as much as legacy protection.


No way to know for certain (yet) if you're right about that, but I think you are. It seemed to me at first (Fern/Headstock issue)to be a petty effort on the part of Gibson to thwart competition from the little guy. The more I've read though, it looks like they just want to head off any one else from claiming trademark rights to what really is rightfully a Gibson design. 




> It looks like according to this document that Gibson didn't show enough evidence to gain the trademark. 
> 
> http://tsdr.uspto.gov/documentviewer...Index=3&page=1


The way I read it, this is just a step in the process. Maybe I missed something but I don't think the issue is a lack of evidence, but that the design description was too vague.

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## Isaac Revard

I think the father of bluegrass said it best.

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almeriastrings, 

atbuckner21, 

Drew Egerton, 

Emmett Marshall, 

Pick&Grin, 

sgarrity, 

SlowFingers, 

Steve VandeWater, 

TEvans, 

Tobin, 

Tom Coletti

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## atbuckner21

Mando_Zeek, you just dropped the mic.  :Smile:

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## DWM

One of the things I consider when I decide who's instrument I'm going to buy is the ethics and business practices of the company making it.  My local music store (not a mandolin dealer) tossed Gibson several months ago because of their completely unreasonable practices.  Today there are so many alternatives to all the instruments Gibson makes that its pretty easy to go elsewhere.

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atbuckner21, 

greenwdse, 

k0k0peli

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## atbuckner21

DWM, I agree completely. When you have people like Girouard, Ellis, Pava, Collings, etc., all of which are ran/owned by incredible people who treat not only customers, but competitors with respect, it's tough to purchase an instrument from someone who doesn't (or at least doesn't appear to).

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lauri Girouard

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## Spruce

> One of the things I consider when I decide who's instrument I'm going to buy is the ethics and business practices of the company making it.  My local music store (not a mandolin dealer) tossed Gibson several months ago because of their completely unreasonable practices.  Today there are so many alternatives to all the instruments Gibson makes that its pretty easy to go elsewhere.


Try being one of their vendors sometime....
No, _don't_...     :Disbelief: 

I can't believe it's been 30 years now....

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atbuckner21

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## G7MOF

The mark consists of the uniquely shaped three-dimensional configuration for the body portion of the mandolin with a curved base, rounded body shape, with a top and bottom point at the right of the mandolin body and stylized ornate scroll design at the top left of the mandolin body!

Good job I'm left handed, It doesn't apply to me then!!!

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greenwdse, 

MysTiK PiKn, 

Pick&Grin

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## StuartE

The document referenced on the MC front page is, in part, a response to the refusal by G. Fisher, if I am reading things correctly.

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## OldGus

I think trademarks should be reserved for inventors only, they bought the company including it's patents but not it's unpatented designs. They themselves are copying the inventors who held trademarks only on certain aspects of design...Maybe Martin could patent the dreadnaught guitar in the case of this passing...Gibson makes those.

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## Stephen Perry

The way I recall trademark law is that if a trademark, whether registered or not, becomes dissociated from the originator or rights holder, such that the relevant consumers no longer associate the mark with the particular producer that the mark can no longer be enforced.  The mark has become generic.   http://en.wikipedia.org/wiki/Generic_trademark  came up on a quick search right then.

This would be a defense to a suit, and would be rather simple to defend.  The answer to the complaint is "Yup, everyone has used this for years, don't mean a thing.  For example, see exhibits A through ZZZ that show 'infringing' marks nobody batted an eye at.  And see exhibit QQQQQ, the report of a survey at a bluegrass convention demonstrating that the shape is identified with the generic 'F-5' mandolin and not distinctively with Gibson."   Then in discovery, get Gibson to admit knowing about all these copies forever, having admitted that in other pleadings, etc.  Get an expert if required to submit a report.  I suspect a motion for summary judgment after a bit of discovery would be successful.

Please, someone test this1

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Mandobar, 

MysTiK PiKn

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## Tom Haywood

Interesting. The specimen they use for the application is the F9 as advertized by Musician's Friend, which doesn't show the Gibson name on the headstock. I would recognize that anywhere as a Gibson mandolin, not because of the body and headstock shapes but because of that specific sunburst combined with the lack of binding. Another color and that could be any builder's mandolin for the past fifty years. I think there is a lot more going on here than attempting to preserve a legacy.

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## billkilpatrick

the "the" on "the loar" will be next ...

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atbuckner21, 

TC-in-NC

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## MysTiK PiKn

so, in summary, lots of ideas, and no resolution? I still think it's monopoly time. You land on Boardwalk, you pay. 

Or possibly the great copiers spawned a renegade factory that's going to flood market cheap. I think gibby might have already licensed all that to the ones we know. So maybe it's to block out any big players from getting a free ride on Boardwalk.  And then they own the world.  Little guys don't matter in this picture. It's close out time for big players /big copiers unlicensed.  
What do we know about China?

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## Emmett Marshall

I find the previous poster's suspicion that Gibson is preparing to sell quite intriguing.  Who would buy out Gibson?  Saga? A company in Mexico? Harley Davidson? I better hang on to my "original" Gibson.

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## Robb Todd

If someone here understands the law of trademark it would be useful to get a clear understanding whether the position is that if no one objects to this and they gain the trademark they can then enforce it against anyone making F shape mandolins. 

If that is the case the mandolin community may need to put something in opposition to the application rather than relying on them (or who ever owns it) not taking any action to enforce it.

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## Ivan Kelsall

Gibson can always re-assess the information given & apply for a *new* patent. All the wording on the document linked above,applies to _that_ patent application only.Also,unless Gibson have applied for a patent covering 'foreign' countries,any builder outside the US is free to use the Gibson 'model',but it won't be legal to sell it in the US.
  This bit's interesting :- "*Can I still get a patent even if my invention has been written up in Popular Mechanics (for example)and I've been selling it for some time ?*
_Maybe. You must apply for a patent within one year of the first publication, public use or sale. If "some time" is longer than a year, you cannot get a patent anywhere. If it is less than a year, you can get a patent here in the United States (assuming the invention is otherwise patentable, of course), and in a very few other countries. It is a better idea to apply before the first application or sale, as most countries do not allow this one year grace period._
More reading here :-    http://www.bpmlegal.com/patqa.html
                                                                                  Ivan :Wink:

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## GTison

Ivan: a better link to the same site may be http://www.bpmlegal.com/tmqa.html#1

I believe the original post is about Gibson applying for a "trademark" .  This is different from patent.  But a good site for explaining that.

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## JeffD

I think its defensive. To prevent some other company trademarking it, and then limiting Gibson's ability to use it. 

This can happen. There is a famous wine company that was sold to a conglomerate. The patriarch of the family, who had started the winery way back in the beginning, was prohibited from making wines in his own last name, because that name was now owned by someone else.

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## Spruce

> I think its defensive. To prevent some other company trademarking it, and then limiting Gibson's ability to use it.


I think it's the residue of this: lawyers on retainers...
Gotta give 'em _something to do_, just like they've been doing for 30 years now...
It it still Lucian Beavers (that's from memory, which is subject to gaps these days) in St. Louis?
That would speak volumes if "yes"...

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## Russ Donahue

Bully, I say. Bully!
Heh, heh.

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MysTiK PiKn

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## Russ Donahue

"There is a famous wine company that was sold to a conglomerate. The patriarch of the family, who had started the winery way back in the beginning, was prohibited from making wines in his own last name, because that name was now owned by someone else."


Bully, I say. Bully!
Heh, heh.

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MysTiK PiKn

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## mrmando

> This can happen. There is a famous wine company that was sold to a conglomerate. The patriarch of the family, who had started the winery way back in the beginning, was prohibited from making wines in his own last name, because that name was now owned by someone else.


Heck, didn't that happen to Augie LoPrinzi for a while? He made guitars under the Augustino brand because he had sold the rights to his own surname, correct? 

How many times has Gibson been sold to a parent company? At least twice, right? It could happen again...

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## Rex Hart

Obviously I am in the minority on this topic and I don't see how Gibson can prevail after all these years, but I have often wondered how different companies have gotten away with the copy cat designs for so many years without repercussions. It also seems that as times goes by, more and more of this is happening. Someone threw out the example of "The Loar". In my mind, Gibson has to start standing up for themselves, even though in this instance it seems too much time has passed. Also, as a proud Gibson Harvey signed owner, I have nothing but praise for the quality of the mandolin and my buying experience through my local dealership. From my point of view after reading this thread, it seems like this has created an opening for people to pile on ( maybe rightfully so). But....imitation is the sincerest form of flattery :Smile:  Not trying to be argumentative, just throwing out a different point of view.

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## OldGus

> But....imitation is the sincerest form of flattery...


That or a sign of desperation, lack of comprehensive knowledge, originality, a mockery, etc. People don't often like to admit it but we are like sponges for information, environmental factors, etc. and are very influential beings.

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Rex Hart

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## Tobin

> Obviously I am in the minority on this topic and I don't see how Gibson can prevail after all these years, but I have often wondered how different companies have gotten away with the copy cat designs for so many years without repercussions.


What repercussions would they have faced, since Gibson never made any moves to trademark their design?  That's the thing that I still don't get about all this.  Gibson obviously knew how to work patents.  Their bridges, pick guards, and other components were patented.  All the labels in their mandolins mentioned multiple patent dates.  But patents expire, and as far as I know, nobody was copying their early teens F-style designs until much later.  But the fact that they knew the patents would cease to offer protection at some point, and they never moved to use trademark protection until a century later, shows that they didn't care to make a fuss about the imitators.  I could be wrong, but the only fuss I remember them making was about people actually using the name Gibson, not necessarily copying their design.




> It also seems that as times goes by, more and more of this is happening. Someone threw out the example of "The Loar". In my mind, Gibson has to start standing up for themselves, even though in this instance it seems too much time has passed.


Yeah, one would think that the "you snooze, you lose" rule would apply here.  But they're trying anyway.  At this point it just comes off as desperate and pathetic.




> Also, as a proud Gibson Harvey signed owner, I have nothing but praise for the quality of the mandolin and my buying experience through my local dealership. From my point of view after reading this thread, it seems like this has created an opening for people to pile on ( maybe rightfully so). But....imitation is the sincerest form of flattery Not trying to be argumentative, just throwing out a different point of view.


In my mind, that's the most confusing part of all.  Despite their horrid quality in the 1970s, without any real attempt to reestablish their mandolin line as top-notch until the 1990s or early 2000s, they have still managed to keep their reputation as "the best".  Or the standard by which all others should be compared.  And I'll grant that their quality these days is back to what it should be.  They have a real opportunity to redefine themselves and reestablish themselves as the pinnacle of mandolin making, but they just simply refuse to do what it takes.  They put no effort into marketing.  Their dealer policies are garbage.  They refuse to ramp up production, knowing full well that there's a thriving market for well-made mandolins.  It's almost like they don't want to make mandolins or retain their reputation.  But then they turn around and do this?  It doesn't make any sense.  It's at total odds with all the choices they've made as a company in the last few years.

I don't really want to "pile on" to Gibson.  I think their mandolin-building team is top-notch, and they're good people.  But the corporate stiffs have made terrible decisions, and are only making it worse.  These recent trademark moves are the equivalent of a big middle finger to the entire mandolin community.

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Rex Hart

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## testore

I think it's funny that mando zeek used a picture of a mandolin I made.

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## Andrew B. Carlson

What was the lawsuit in the 70's with those Ibanez F5s then?

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## Jim Hilburn

It's hard to find a similar situation to how this all went down in history, how the instrument largely went out of favor for decades but interest in it was resurrected much later. The Les Paul is somewhat comparable. From it's inception in '52, even with continuous improvements it just didn't do well in the market and in '61 Gibson gave it up for dead, moving on with the more modernist SG.
But in the meantime Bloomfield, Clapton, Green, Page and on and on resurrected the popularity. In this case though, Gibson saw it and reacted to it.
Another example might be D'Angelico. John died in 1964 and there have been several luthiers who have made replica's of his work. But now someone owns D'Angelico and has them made in Japan I believe. I guess they could do the same thing about protecting the trademarks if they chose to.

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## Rex Hart

> In my mind, that's the most confusing part of all.  Despite their horrid quality in the 1970s, without any real attempt to reestablish their mandolin line as top-notch until the 1990s or early 2000s, they have still managed to keep their reputation as "the best".  Or the standard by which all others should be compared.  And I'll grant that their quality these days is back to what it should be.  They have a real opportunity to redefine themselves and reestablish themselves as the pinnacle of mandolin making, but they just simply refuse to do what it takes.  They put no effort into marketing.  Their dealer policies are garbage.  They refuse to ramp up production, knowing full well that there's a thriving market for well-made mandolins.  It's almost like they don't want to make mandolins or retain their reputation.  But then they turn around and do this?  It doesn't make any sense.  It's at total odds with all the choices they've made as a company in the last few years.


Good post!

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## Rex Hart

I guess the thing that bothers me the most is why copy the design to begin with? It's not like Gibson didn't use this design throughout the years or let it lie dormant (except maybe in the war years). Even if they didn't patent the design, it may be legal but that doesn't make it right. I mean, they could have at least changed the shape of the headstock, the original design is kind of hideous anyway.

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## k0k0peli

I'll go with the getting-ready-to-sell-the-company conspiracy theory. Not that I have any insider knowledge, or ANY substantial knowledge of corporate Gibson, for that matter. But I know conspiracy theories, and this one fits. Follow the money. Will Gibson make more by trying to enforce TM or by cashing out? I suspect the latter. Who would buy Gibson? I'll leave that for further speculation.

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## Tobin

> What was the lawsuit in the 70's with those Ibanez F5s then?


I know Gibson sued Ibanez over their guitar headstocks.  And many refer to the '70s Ibanez mandolins as "lawsuit" models.  But did the lawsuit actually include mandolins?

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## lenf12

> And many refer to the '70s Ibanez mandolins as "lawsuit" models.  But did the lawsuit actually include mandolins?


And Takamine acoustic guitars sued by Martin, Tokai electric guitars sued by Fender, blah blah blah... To my knowledge, Gibson was seeking protection of their "Les Paul", moustache headstock shape. I don't know if their suit ever went to trial or if they were successful. Seems to me that most of this lore of the "lawsuit" instruments is just that, lore. 

Len B.
Clearwater, FL
(former owner of a Takamine D-35 copy and an Ibanez F-5 copy)

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## FLATROCK HILL

> I think it's funny that mando zeek used a picture of a mandolin I made.


So, in this case...testore said it best!

(It's quite a compliment that no one even noticed...almost like April Fools Day all over.)

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## EdSherry

Some folks are confusing patents and trademarks.  The rules for the two are different.  

You can't get a patent if a product containing the feature you seek to patent has been "on sale" for a year before you apply for a patent.  Patents currently last 20 years from issuance; you can't renew them.  You can get "design patents" on designs of a product.  But design patents have a 20-year life.  If Gibson had gotten a "design patent" back in the 1920s, it would have expired long ago.

Gibson is seeking a trademark, not a patent.  Trademarks can last indefinitely; they don't "expire" so long as the owner continues to use the mark in commerce.  A mark can lose its protected status if it's no longer being used (it was abandoned) or if it has become "generic."  

The PTO examiner originally rejected the application because Gibson hadn't made it clear what aspects of the design it was claiming, but Gibson's lawyers have come back and filed a clarification.  

As I said in my original post, the stated purpose of a trademark is to protect consumers against confusion as to source.  IMHO, people don't currently associate Gibson (the company) with the F-5 shape, unlike the situation with peghead shapes (Fender, Gibson, Martin).  So I suspect it's way too late for Gibson to get a trademark on the F-5 shape.  (With respect to the "fern" inlay trademark, I don't know whether enough other people were using the "fern" design to render it "generic.")

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k0k0peli, 

StuartE

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## lenf12

> (With respect to the "fern" inlay trademark, I don't know whether enough other people were using the "fern" design to render it "generic.")


To which I ask, how much is "enough"?



Len B.
Clearwater, FL

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## Tobin

> To my knowledge, Gibson was seeking protection of their "Les Paul", moustache headstock shape.


Yeah, that's pretty much the point I was making.  They have a long history of being protective of their lucrative guitar market.  With mandolins, they abandoned the fight decades ago and let everyone else copy their design unchallenged.  To try to do something about it now is a boneheaded move.

But they may yet get away with it, just like they did with the fern design.  Apparently the government doesn't do any homework and simply takes them at their word.  If the industry doesn't challenge the application, it might get approved.  It's going to be a legal headache for everyone.  And for what?  Gibson is probably spending more on the attorneys than they make in mandolin profits over a decade, given their wimpy production numbers these days.

It just doesn't make any logical sense.  Something else is going on here, for them to try this now.  Maybe the theory of positioning themselves for a sale is it.  Maybe something more sinister, like suing everybody else.

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## David Lewis

This has been another interesting discussion. Certainly there's a possibility that Gibson will close off further production of f-style mandolins. 

This MIGHT lead to a new and exciting development in mandolin design. History is filled with innovations that were developed because of intellectual property restrictions. It could become very exciting.

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## Ivan Kelsall

Can the _design_ of the 'body shape' of the Gibson mandolin be described as being (having been in) in the Public Domain' ?. Given that the original _design_ must have existed _'on paper'_ some time in the past, & that the _design_ was never patented / copyrighted,then until now, the Gibson Co. has never exerted it's right to own the _design_ as their  'intellectual property' !. 
   That the Gibson Co.have allowed this situation to carry on for so long,seems to me to weaken their case re.applying for a patent now. At the time the first Lloyd Loar mandolins were made,it's more than likely that Gibson never realised that 'that' style of mandolin would become so popular that other luthiers would copy it,& as such,never thought to patent / copyright the _design_. Indeed,as 'copies' appeared,the Gibson Co. doesn't appear to have had any notion of patenting or copyrighting the _design_ until now. If they were really concerned,then one would think that they'd have done something a long time ago, :Confused: 
                                                                                                                                                                Ivan :Wink:

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## David Houchens

I( have at least 3 sets of plans for F5 mandolins, drawn up by people other than Gibson. two are many years old. Were any of these folks sought out by Gibson over the years? I doubt it. Roger Siminoff has been putting F5 plans out for how many, decades now? I'm sure someone at Gibson was aware of this and it doesn't appear he was sent a cease and desist notice in all these years. I would think, (no legal knowledge) that it wouldn't take much resistance to keep this from going through.
 But then, I sure can't afford a lawyer. Should be a good lawyer out there though, that would like to see the all the various F5's stay available.
 Glad my A style isn't on Gibson's design.

----------


## Jim Hilburn

Roger was careful to name his book " How to build a bluegrass mandolin" , not F5.

----------


## Pick&Grin

A court win might raise their shares, but their stock has gone down in my book.

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## Emmett Marshall

Let's assume for a moment that Gibson's F5 trademark application does get approved.  Does this mean that any image of an F5 mandolin will have to be "used with permission" from Gibson.  One example could be the Mandolin Cafe stickers, or the manufacturing of T-Shirts, business cards, etc etc etc.  Any thoughts on how far reaching this could be?  What if I opened up a mandolin shop and had a neon, F5 shaped sign put out?  Could I be sued?

----------


## Tobin

> Let's assume for a moment that Gibson's F5 trademark application does get approved.  Does this mean that any image of an F5 mandolin will have to be "used with permission" from Gibson.  One example could be the Mandolin Cafe stickers, or the manufacturing of T-Shirts, business cards, etc etc etc.  Any thoughts on how far reaching this could be?  What if I opened up a mandolin shop and had a neon, F5 shaped sign put out?  Could I be sued?


Well, that's the kicker.  Theoretically, yes, this would open up a whole world of lawsuits that Gibson could use as a source of income/profit, with far-reaching ramifications.  There would be a lot of room for legal challenges, of course, but I don't know how many people would have the financial ability to hire lawyers for this.  Most small businesses would have to abandon any F5-related images or products.  Some might fight it, and the only winners would be the lawyers (as usual).  

Basically, it would wreck the entire mandolin world as we know it.  Gibson is playing with fire.

----------


## atbuckner21

What I love is that Gibson, doesn't advertise on the Café, raises prices, and makes decisions like this; all the while expecting that the mandolin community is too ignorant to take notice. I will never own a new Gibson mandolin, guitar, etc. This Café promotes the legacy of Gibson mandolins more than anywhere that I can think, and has a true appreciation (as do I) for the quality the Gibson name used to embody (by quality, I don't mean production, but ethically). There are too many builders out there who involve themselves in the mandolin community, offer fair prices, and don't get caught harvesting illegal wood, or trying to patent/TM 100-yr old designs; for me to ever pursue a Gibson build.

----------

MysTiK PiKn, 

Pick&Grin

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## testore

I'm not sure if it destroy the mandolin world. This kind of thing tends to cause more rebellious behavior than compliant behavior. If anything it would create an underground of mandolin activity, and I think, at Gibsons expense. My clients who want MY Loar copies aren't going to buy a Gibson just because of trademark. Like I've said in the past, Gibson should make more consistent products. Small builders are collectively out selling Gibson by a lot. That will only increase with or without trademark rulings.

----------

atbuckner21, 

DataNick

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## Tobin

> This kind of thing tends to cause more rebellious behavior than compliant behavior. If anything it would create an underground of mandolin activity, and I think, at Gibsons expense.


That may be true, although it will still radically change the mandolin market.  If there is the risk of Gibson suing anybody they find who produces or uses their trademarked F5 shape, we will see a halt from reputable small-scale producers.  The Asian mass importers may still be producing "The Loar", "Kentucky", and other models that use that shape.  But what of Gilchrist, Ellis, Dudenbostel, Collings, Weber, and countless other well-respected but small-scale operations that cannot afford to risk the legal fury of the Gibson lawsuit goons?  And even if our favorite makers did choose to continue making F5s, what would it do to their reputation for being ethical, honest people?  

Here's where it really will cause a rift in the mandolin community.  Practicing musicians, by and large, tend to have a lot more respect for "intellectual property" than the public at large.  Protecting the work of fellow musicians seems to be a common theme, based on the principle of intellectual ownership, as well as legal copyright protection.  The principle isn't much different between intangible works like songs and tangible works like mandolin designs.  How will the mandolin community react to the idea of wanting to hold to this principle for legally protected music, but violate it for legally protected instrument design?  

Up to this point, we have all recognized that Gibson was the original intellectual owner of the F5 design, but since they took no real steps to protect it over the last 80-ish years (since the original patent expired, if there was one for the F5), I don't think there has been much in the way of moral qualms about copying the design or using the F5 moniker.  Will Gibson's sudden urge to claim ownership change the way people feel?  Especially considering their desire to honor the idea of intellectual ownership?

I dunno.  I could be wrong, and I'm just thinking out loud, as it were.  But I would think that regardless of what kind of enforcement action Gibson takes or doesn't take, any successful trademark action will have multi-tiered fallout for the future of the F5 mandolin.

----------


## foldedpath

> It's hard to find a similar situation to how this all went down in history, how the instrument largely went out of favor for decades but interest in it was resurrected much later.


One other example would be the National resonator guitar. Both the National and Dobro guitar companies suspended production during the WW2 restriction on aluminum for cones. The Dobro brand survived through various iterations (Mosrite, OMI), sustained by continued use in Bluegrass bands, and was eventually acquired by Gibson. But there wasn't much widespread interest in old Nationals until a shiny Style O showed up on the cover of Dire Straits' "Brothers in Arms." Then the vintage market exploded, and the brand was revived in 1989 by Don Young and McGregor Gaines as National Resophonic. That company is doing well, as as far as I can tell (and they make a great mandolin!). 

Meanwhile, Gibson has gradually shifted their ownership of the Dobro trademark over to cheaply built Chinese-made Hound Dog models, nowhere near the quality of what National Resophonic is building under that revived brand name. As far as I can tell, Gibson is no longer making the few high-end celebrity endorsement USA-made Dobros they used to sell. The brand name "Dobro" used to mean a high-quality instrument, but no longer. 

Sorry for the rant, but what Gibson has done with the Dobro brand is a pet peeve of mine, since I own a few 1930's metal body Dobros.

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## DataNick

> ...Sorry for the rant, but what Gibson has done with the Dobro brand is a pet peeve of mine, since I own a few 1930's metal body Dobros.


Kinda like what eventually happened to Flatiron...

----------

SlowFingers

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## goose 2

I own a Gibson F-5 which I love but I gotta say that all the corporate antics through the past 15 years has tainted my pride in ownership a bit. if I din't love my mandolin so much and didn't have so much admiration for their mandolin builders  then I'd be tempted to move on. I could be wrong here but I have not noticed Martin doing stuff like this.

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## Ivan Kelsall

From Tobin - _"But what of Gilchrist, Ellis, Dudenbostel, Collings, Weber, and countless other well-respected but small-scale operations ......"_. The implications for those builders is one that i don't like to think about too long !. However - as the Gibson Co. have not sought to trademark their design for so long,& have allowed other builders virtually free rein to build exact copies of their mandolins,then it could be argued that to _trademark the design at this point in time_ ,would bring about financial hardship to the great detriment of these builders & their families. Any court ruling would surely have to take that into account,at least i sincerely hope that it would. For the Gibson Co.to allow businesses to flourish for many years,only to pull the rug from under their feet,to me,is simply 'sabotage' in it's true meaning ,& i'd hope that any court would see it that way. It's not as if Gibson haven't know what's been going on until this point in time. They had their chance to take action many years ago but didn't.
As such,it could be argued that Gibson _'tacitly agreed'_ to this situation by their lack of action.At the very least,they'd have to put up a darned good reason as to why _they didn't take action_ back then,
                                                                                               Ivan :Wink:

----------


## Petrus

I noted on the Fern inlay trademark discussion thread that even if worse comes to worse and it is no longer possible for other makers to use the Gibson F style, there is enough creativity out there that one unseen benefit is that we may see more unusual designs becoming more mainstream.  For starters, you can just look at a Giacomel, Monteleone, Mowry, Phoenix, Breedlove, and so forth and see that if people open their minds there is a whole world of possibilities out there besides the stodgy old F style.  With luck they may also become available in sub-$1K models for the majority of us who can't currently afford some of these unique models.

----------

Scot Thayer

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## GTison

Here is an interesting LEGAL article that may apply to Gibson's filing in general.  In reading it, none of it seems to me would pass the test.  But then again, how they got the fern & headstock trademarked doesn't seem to pass either.  
http://www.brinksgilson.com/files/ar..._handelman.pdf

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## GTison

I wonder if Monteleone and Giacomel etc have trademarked their designs?

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## FLATROCK HILL

> ...if people open their minds there is a whole world of possibilities out there besides the stodgy old F style.


Just like the 'New Coke' took over for the out-dated old stuff.

No Sir! My mind is closed; and in it, stodgy = classic

----------

NoNickel, 

TC-in-NC

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## Tobin

> Just like the 'New Coke' took over for the out-dated old stuff.
> 
> No Sir! My mind is closed; and in it, stodgy = classic


Yup.  It's proven that the F5 style is extremely popular.  Other builders would have to reinvent the mandolin shape and try to persuade customers to like it.  In existing markets, especially ones steeped in tradition, this rarely works.  Many mandolin builders have tried to introduce new shapes, and none have ever come close to overtaking the Gibson designs.

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## Jim Hilburn

There's so much more going on than just the shape. Players might have accepted the aesthetic changes it went through in the 50s to the 70s if only they had sounded good.

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## Petrus

Classic = gut string, friction peg bowl back FTW!

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## Emmett Marshall

Not taking the bait. :Laughing:

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## Tom Coletti

> Many mandolin builders have tried to introduce new shapes, and none have ever come close to overtaking the Gibson designs.


If there had to be one design to overtake it, then I'd put my chips on Sorensen's Pacifica; still roughly F5-esque in overall dimensions, but a brilliant evolution of the design with a distinct western oceanic flair, and the blue-to-gold burst is stunning.

I'm just glad that Steve has so far maintained his competitive advantage and unique foothold in the niche market.

--Tom

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## MysTiK PiKn

Garrison - also bought up by gibson - I think that really scared them.  Garrison's were loud and heavy bassy.  Revolutionary.  and Canadian, eh.  I only ever saw one. Huge sound.  They had a unique bracing system - I forget what it was made of - not wood - some fancy spaceage material, can't recall.  I think they were on the market for less than a year - gone.

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## Bob Sayers

I'm kind of surprised that this whole issue hasn't surfaced long before now.  Regardless of what one thinks of Gibson (my opinion:  great shop team and instruments since the Charles Derrington days; management decisions, not so great), it seems a no-brainer for the company to protect its intellectual property.  GTison provided a link to a quasi-legal definition of a trademark.  The example given under "shape" is "the famous Coca-Cola bottle."  What could be more iconic, moreso even than the Coca-Cola bottle, than the Gibson F-5 mandolin.  It would be hard to argue that the F-5 shape started out as a generic mandolin design, common to several builders.

After some 50 years of F-5 clones, maybe it'll be resolved that Gibson has simply waited too long to reclaim its intellectual property.  If, on the other hand, they are successful, my guess is that Gibson's lawyers would first communicate with the overseas makers of F-5 style mandolins, demanding that (1) they cease and desist, (2) substantially modify their design, or (3) pay Gibson a licensing fee.  After all, it's all about the money.  With smaller makers, they might simply "recommend" in a sternly-worded letter that they think about changing their design.   

In any event, it should be interesting to see how this plays out.

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## MysTiK PiKn

I tend to think the Chinese makers already pay license fees.  Or, Gibson already owns the Chinese manufacturing. (as in Epiphone - but also Loar, Eastman, Kentucky, etc etc.  They are all the same idea.  Is Gibson blind?
If I look up Gibson F5L fern on Gibson website, I get a picture that's almost exactly the same as what's in my hands w The Loar 700 VS on the label.  Those have been on the market for several years now.  As have the other brands.  Affordable copies.

None of this makes any sense - except conspiracy theory - world market domination, antitrust, Epiphone clones., etc. The Loar clones, Kentucky clones?  I really don't know how the business model is set up - and there's no talk about that. Just this legal case.  There's a 100 year history, there's changes of ownership in the 70's, maybe a couple. Kalamazoo is gone.  Montana. Tennessee. Japan. China.  It's all over the map.  Makes no sense.  Who owns what? I don't think we know that. I think I own my mandolin.

Maybe the clones are too good?  and Gibson wants out of the deal?  wild guesses.

And it's not just mandos, tons of guitars copied also - TML also has a lot of cheap gibson clones under the Rec King brand.  Owner, distributors, manufacturers, licensees, and lawyers. 

omg. What would Orville say?

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## goaty76

I haven't followed this entire thread closely so maybe this has already been mentioned before but if Gibson was successful in trademarking their F-style mandolin design then they could also probably do the same to the A-style design shape.  Both were original Gibson designs and before they came into being when someone said the word mandolin what most people would picture in their mind would be a bowlback.

Phil

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## Ivan Kelsall

It could also be argued that the lack of action by the Gibson Co.to trademark their design prior to other makers producing instruments of a 'like design' ,& allowing those makers to build up businesses & livelihoods making mandolins of an _''as of yet''_ un-trademarked design,could force those makers into hardship & therefor Gibson should compensate those makers for _loss of future earnings._. For example_ :- If i were to copy any 'item' that isn't trademarked /patented or copyrighted at the time i copied it,if,20 years down the line,the designer of the original 'item' decides to trademark it,can i be held responsible for the infringement of a trademark etc. which hadn't existed at the time of my original action ?._ It seems to me that there's a lot to argue about, & that it's not going to be a forgone conclusion that the Gibson Co. will be allowed to Trademark their design,
                                                                                                                                                             Ivan

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## Tobin

> For example_ :- If i were to copy any 'item' that isn't trademarked /patented or copyrighted at the time i copied it,if,20 years down the line,the designer of the original 'item' decides to trademark it,can i be held responsible for the infringement of a trademark etc. which hadn't existed at the time of my original action ?._


Surely not.  We do have provisions against ex-post-facto laws here in the US, and I would presume that the same protection applies to trademarks and such.  But then again, such an action would take place in civil court, I would guess, and all kinds of crazy stuff happens there.

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## Emmett Marshall

I've been thinking about all this sudden trademarking effort by Gibson concerning their F-5 Fern. So many people have profited tremendously due to Gibson and Lloyd Loar's designs and innovations. Gibson has not interfered - even though they could have done so many years ago.  What a wonderful "gift" Gibson has been willing to share with the mandolin community - despite their own financial losses with having to compete against their very own designs - to the point of extreme reverse engineering by builders.

The implications that Gibson may be somehow foolish or greedy for trademark applications that are so "late in the game," doesn't negate, for me, the reality that many, many people have benefitted financially for so many years. Not only that, but if it weren't for all that entrepreneurial freedom, due to Gibson's lack of greed, I suggest that we wouldn't have some of wonderful instruments we have today that are based in Gibson's original designs.

After having this realization, I am of a mind to fully support Gibson's claims to these designs. I own one actual Gibson F -5L that is flawless and two Kentucky clones. Of the three, the Gibson's quality does stand out and make a difference. My next purchase will be a Gibson Fern (2003 or later).

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## Ivan Kelsall

Emmett - While i fully understand your viewpoint,i'm not altogether sure that there's any 'gift' in it. IMHO,it's more likely that Gibson _didn't care_ what was going on until now. If it was such a 'gift',then why are Gibson seeking to 'take it back' after all these years,to the detriment of many luthiers who could stand to lose their business - that's not much of a 'gift', it's a deliberate effort to sabotage businesses built around producing Gibson 'style' mandolins. Gibson have _absolutely neglected to protect their design until now_,& that other luthiers have copied that _un-protected design_ because we,as players wished to have a mandolin of that design,is hardly surprising.
   Whilst  understanding the Gibson point of view,i feel that they have left it too late (IMHO),to 'take back' total ownership of the design. But as i said in my last post - there's a lot to argue about, & i feel that Gibson has to come up with a very good argument indeed as to why it's taken 80+ years for them to get around to trademark their design,meanwhile paying no attention to other builders producing mandolins of a 'like' design. It could be said that the Gibson Co. have 'self harmed' their Co.by sheer neglect - so why try to put the other builders out of business - spite ?,
                                                                                               Ivan :Wink:

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## Emmett Marshall

> Emmett - While i fully understand your viewpoint,i'm not altogether sure that there's any 'gift' in it. IMHO,it's more likely that Gibson _didn't care_ what was going on until Ivan


Hi Ivan.  Yes, "gift" wasn't the best term to make my point. Sorry about that. I used that term because I'm an opportunist who picks up coins found on the ground every time he sees them.  I didn't mean to imply that Gibson _consciously_ neglected trademarking for anyone else's benefit, and yes, they probably just did not "care" - which is part of the point I was making about the company not being primarily motivated by greed.  Whatever the motivation, or lack thereof, there is no doubt that they allowed their designs to be exploited for a very long time - whether on purpose, or due to their negligence in protecting their product designs. 

Why are they doing this *now*?  I would guess that most of us believe Gibson presently feels the need for these actions because of financial reasons?  The _thing_ that I can't wrap my head around is the idea that Gibson "owes" the world anything - especially in the light of how much they have given.  From inventing the truss rod, to the F5 design, they have allowed free use of their innovations. 

I can see that "if" the application is granted, and they also decided to enforce it, builders would have to adjust and learn how to do some innovation of their own. What is that old saying, "Necessity is the mother of invention."?  There's another old saying that my father would use on me, "Son, this world doesn't owe you a job."  I used to hate that one! :Smile:   If I was judge for a day, I would declare that it is "we" who are in debt to Gibson and Lloyd Loar for their ideas and innovations - _especially_ those that have been able to exploit Gibson's legal weaknesses and poor business practices  - subsequently making a living from such. 

It's funny Ivan, but one way that I can tell my circadian rhythms are all screwed up is when I find myself conversing mostly with friends from the UK on the internet rather than people in the US.

----------


## Randy Linam

Wouldn't that be like Whirlpool trademarking the refrigerator shape? :Disbelief:

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## JeffD

> They refuse to ramp up production, knowing full well that there's a thriving market for well-made mandolins.


That's funny. 

For a company the size and reach as big as Gibson, and with the number of guitars they make and sell, I would be surprised if mandolins are really worth paying much attention to at all, except as a legacy thing. PR value to emphasize roots and roots music.




> It's almost like they don't want to make mandolins or retain their reputation..


Thinking about this, I believe it likely the real benefit is in the Gibson image. I would be surprised if they made enough money selling mandolins to even keep the lights on in the guitar works. 

But I really don't have numbers in front of me.

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## JeffD

> One other example would be the National resonator guitar. Both the National and Dobro guitar companies suspended production during the WW2 restriction on aluminum for cones. The Dobro brand survived through various iterations (Mosrite, OMI), sustained by continued use in Bluegrass bands, and was eventually acquired by Gibson. But there wasn't much widespread interest in old Nationals until a shiny Style O showed up on the cover of Dire Straits' "Brothers in Arms." Then the vintage market exploded, and the brand was revived in 1989 by Don Young and McGregor Gaines as National Resophonic. That company is doing well, as as far as I can tell (and they make a great mandolin!). .


National is keeping the brand reputation, by making its reputation every day. Great example.

----------


## Tobin

> That's funny. 
> 
> For a company the size and reach as big as Gibson, and with the number of guitars they make and sell, I would be surprised if mandolins are really worth paying much attention to at all, except as a legacy thing. PR value to emphasize roots and roots music.
> 
> Thinking about this, I believe it likely the real benefit is in the Gibson image. I would be surprised if they made enough money selling mandolins to even keep the lights on in the guitar works. 
> 
> But I really don't have numbers in front of me.


Well, yeah, we're just guessing here.  But let's look at it this way.  We know there's a mandolin market.  The importers make big bucks and sell thousands, if not tens or hundreds of thousands of Asian-made mandolins each year.  There are dozens and dozens of small-shop mandolin makers in the US making mandolins of very high quality.  So the market is there, obviously.  Gibson used to dominate that market.  They could dominate it again if they wanted to, even if it meant doing what they do in the guitar market.

Just because the mandolin market isn't as big as the guitar market doesn't mean there isn't a lot of money to be made in it.  Saga and other companies are proving that.  So why has Gibson expressed zero interest in rebuilding their mandolin line?  It's not like they have to choose between building guitars and building mandolins.  They are a big enough company that they could do both, and indeed have done both.  Even right now, with their reputation and brand power, they could rebuild their mandolin line from the ground up, and do very well.  

Personally, I don't care if Gibson wants to let their mandolin line go the way of the dodo bird.  If that's their choice, fine.  But making these moves to hamstring everyone else who wants to build the most popular mandolin model is crass.

----------

atbuckner21

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## Ivan Kelsall

Tobin - I couldn't agree more. It almost seems as though Gibson aren't bothered too much about making sufficient quantities of mandolins themselves,but they don't want others making them either,which is a very strange stance to take IMHO,
                                                                                                                                                         Ivan

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## Austin Bob

> Just because the mandolin market isn't as big as the guitar market doesn't mean there isn't a lot of money to be made in it.  Saga and other companies are proving that.  So why has Gibson expressed zero interest in rebuilding their mandolin line?  It's not like they have to choose between building guitars and building mandolins.  They are a big enough company that they could do both, and indeed have done both.  Even right now, with their reputation and brand power, they could rebuild their mandolin line from the ground up, and do very well.


I think it is a bit of an overstatement to suggest that Gibson has expressed zero interest in rebuilding their mandolin line. Quite the opposite, I would say. Many think the current production of Harvey signed instruments are some of the best they've ever produced. And even though they have a small production (compared to their guitar line), they would still easily be ranked in the top 5 producers of mandolins in the over $2000 price range. 

Personally, I think that trademark and copyright laws are at the very foundation of our property rights. If Gibson can successfully argue their case in a court of law, then they should be able to profit from their intellectual designs. 

Yes, they were foolish for not doing so much earlier, but I'm not convinced that's a legal argument  that they've abandoned their rights. We'll see...

----------

Mark Wilson, 

Rex Hart

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## Tobin

> I think it is a bit of an overstatement to suggest that Gibson has expressed zero interest in rebuilding their mandolin line. Quite the opposite, I would say. Many think the current production of Harvey signed instruments are some of the best they've ever produced. And even though they have a small production (compared to their guitar line), they would still easily be ranked in the top 5 producers of mandolins in the over $2000 price range.


I don't mean to imply that their current line isn't good quality.  But their production numbers are pretty much nil.  As I understand it, they only build mandolins based on actual orders (someone correct me if that's wrong).  They don't have a production schedule where they build mandolins for dealers to stock on their shelves (or wall racks, as it were).  I can't even think of any instrument shops that carry new Gibson mandolins in stock.  Are there any?  

I mean, I ain't in the business of retailing musical instruments, but it would seem to me that if a company actually wanted to sell its product, it would start by building some of them and getting them out there to the dealers so that customers can see them and play them.  Gibson hasn't shown any interest in doing that.  Rather the opposite, in fact.  Gibson dealers seem to have walls full of guitars, but every one I've spoken to has said that the only way to get my hands on a new Gibson mandolin is to order one.  That's a pretty lame way to sell mandolins.




> Personally, I think that trademark and copyright laws are at the very foundation of our property rights. If Gibson can successfully argue their case in a court of law, then they should be able to profit from their intellectual designs. 
> 
> Yes, they were foolish for not doing so much earlier, but I'm not convinced that's a legal argument  that they've abandoned their rights. We'll see...


Well, actually, the fundamental principle of "intellectual property" is that you must take action to protect it.  If it's a popular idea or design and people start to copy it, and you don't say anything about it, then you have implied consent.  This is true in the legal sense as well as any ethical sense.  If you don't show any interest in protecting it, why would anyone assume you want it protected?  

But going even further than that, the original F5 design was created by a person who is no longer living.  In fact, none of the people who worked for Gibson or owned Gibson when the F5 was designed have anything to do with the company today.  Given that it's not really even the same company now that it was when the design was created, and the people working there today had absolutely nothing to do with the original F5 design (they have been copying it just like everyone else), I'm having a hard time understanding whose intellectual property this actually is.  Granted, the government will recognize "the company" as the owner in the legal sense, but it may be a bit of a stretch in philosophical terms to say that anyone at Gibson today can truly make a claim of ownership to that design, since they didn't actually design it.  They've been riding the coattails of the original designer, just like everyone else.

This, coupled with almost a century of not protecting the design, makes it a bit muddy in terms of suddenly claiming exclusive ownership.

Not that my musings will make any difference to what actually happens.  My big question, though is this:  Are there any other companies or entities currently challenging this with the PTO?  Or is everyone else pretty much just ignoring it, or watching from the sidelines?  I think they would have a good legal challenge that the design is in the public domain by now, but if they don't take action to challenge it, they may also be accused of giving implied consent to having it taken away.

----------

Ivan Kelsall, 

Jim Hilburn, 

Rex Hart

----------


## Austin Bob

In my humble opinion, it mattes nil that the original designer is no longer living, nor does it matter that the company has changed hands multiple times. If I buy your design for a better widget, does that mean I no longer own the rights if you pass on?

The crux of the matter here is ownership of intellectual property, and the valid question of whether Gibson has in fact, abandoned those rights.

As a side matter, if anyone is interested in buying a Gibson mandolin, I would suggest they contact The Mandolin Store. Their website indicates they are in stock, however they are unable to advertise online. It seems that Gibson is very much protecting that aspect of their business model. Strange that I can go to Guitar Center online and price a new Les Paul, but I can't do the same for an Gibson F5G.

----------

Rex Hart

----------


## Jim Hilburn

Someone in this discussion said something about having to make the product continuously for at least 3 years to prove you were still doing it. I'd look at 1964 through 1970-71 to see if they built any mandolins in that time period. There couldn't have been many if any made. I guess if you made 3-4 it would still count. If they did, though I'm sure it was on an order basis, not to supply dealers.
And that's also the period when demand for F-5's was just beginning to happen, but there were very few options available.

----------


## Jim Hilburn

Quick search and I found a 67 f5 and a 68 f12 so it would be difficult to find a time when they didn't make at least a few f mandolins.
Learned that Monroe owned and recorded with a 64 f5 and also ran across a lump scroll oval dated 67 which surprised me. Thought those were all 70s.

----------


## Russ Jordan

Didn't Martin come up with the dreadnaught.......................

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## mandroid

Back to the cigar box bodied Stringed Instruments. 


Dreadnaught was a Battle Ship, first.   http://en.wikipedia.org/wiki/HMS_Dreadnought_(1906)

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## Tobin

> In my humble opinion, it mattes nil that the original designer is no longer living, nor does it matter that the company has changed hands multiple times. If I buy your design for a better widget, does that mean I no longer own the rights if you pass on?


That's a valid question.  My thought is that if I had taken legal acts to protect it, and you bought those rights, then you own the rights regardless of what happens to me.  I, as the legally recognized owner, had relinquished them specifically to you.

But if I never claimed any legal rights to the design, but I passed it on to you, and then I died, by what right could you claim rightful and exclusive ownership of the design?  It would seem to me that the entire concept of intellectual property revolves around you actually being the creator of the design, or having a provable right to exclusive ownership with that design.  "Provable" meaning a patent, trademark, copyright, etc., as the case may be.  

We know that patents have an expiration date, and this is an intentional rule.  Government wants the creator of a design to have exclusive rights to it for a set time, so that he may profit off the design.  But not to be the eternal owner of it.  This has become particularly useful with things like generic drugs that can be produced and sold after the original drug's patent expires.  It allows for competition after a time, and helps keep a check on monopolies.  Trademarks are a different story, though, and they are not intended to be able to control the design or production of an item.  They are intended to protect a company's marketing and brand image.  If Gibson originally had a patent on the F5 design, it expired long ago.  Using a trademark as a back-door attempt to create patent-like protection on mandolin design is a misuse of the trademark.  It completely circumvents the intent of expiration dates on patents.

Obviously, I'm not an attorney, and don't pretend to be an authority on these matters.  I'm just thinking out loud.  And I appreciate the discussion; hopefully I'm not coming across as argumentative, as it's certainly not my intent to be confrontational about this.  But I do think it's an interesting topic, with the complexities of this particular case, that aren't as straightforward as it would otherwise be if Gibson had taken this action when the F5 was a new design that no one else used.  While we would all prefer for things to be black and white for the sake of taking a strong principled stance, this case is full of gray.

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k0k0peli, 

Rex Hart

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## atbuckner21

Maybe the ghost of Henry Ford will appear in this thread and try to get the rights to all automobiles with four wheels.

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Drew Egerton

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## Rex Hart

> Maybe the ghost of Henry Ford will appear in this thread and try to get the rights to all automobiles with four wheels.


Only if all automobiles LOOKED like a model T or Edsel, etc..

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## Emmett Marshall

Tobin, I've been employed by companies that had me sign forms which state that I "understand" that anything I create, using their time or their resources, subsequently belongs to them. This may have been a condition of Lloyd's employment with Gibson?

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Ellen T

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## k0k0peli

I'm no lawyer but why should that stop me? Anyway, AFAIK if you don't take steps to protect your "intellectual property" AT THE TIME YOU CREATE IT, then you've released it into the public domain. Delaying a century doesn't protect you. And as mentioned, trying to backdoor a design as Gibson is attempting is a misuse of trademark laws. Company and product ID's are trademarked; physical (and now logical) designs are patented. IMHO Gibson's trademark ploy is akin to failed attempts to protect the "look and feel" of software.

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## Ivan Kelsall

I don't think that anybody has really suggested that Gibson have 'abandoned' their rights to the trademark,but simply neglected to reinforce that right for* 80+ years* !.That they should seek to do so at this point in time,knowing full well that a decision by a court in their favour, might be hugely detrimental to the businesses of other luthiers,seems little less than spiteful (IMHO).That Gibson have allowed this situation to go on for so long without protecting themselves & their design,is crass neglect at the very least.
  The definition of Public Domain as given by Wikipedia are as follows :- http://en.wikipedia.org/wiki/Public_domain
I don't know enough about law to give an 'informed' opinion,but this passage from the Cornell University Law School re.the granting of a trademark,seems ominous :-
_ "See 15 U.S.C. § 1051.  Both at common law and under traditional Lanham Act registration procedures, exclusive rights to a trademark are awarded to the first to use it in commerce"
_ Whether this still apertains after 80 years of neglect,remains to be judged,
                                                                                                         Ivan

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## Ellen T

> Tobin, I've been employed by companies that had me sign forms which state that I "understand" that anything I create, using their time or their resources, subsequently belongs to them. This may have been a condition of Lloyd's employment with Gibson?


I had to deal with copyright issues daily for many years in a photograph/print archive.  If something is created by an employee, for the employer, on the employer's time, the rights belong to the employer rather than the employee who produced it (unless they have a specific contract that states otherwise).  If we were using a photograph from, for instance, a newspaper, it was the newspaper who got the user fee, not the photographer.  Many of the photographs in our collections were well over 100 years old, and had been taken by many different photographers (known and unknown, all deceased), but we still controlled the reproduction rights and charged use fees.  We had accession records going back to the start of the institution for items to prove our ownership.  For more recent photos, if the photographer was still alive, it depended on if they had assigned us all rights; there were some who would collect a separate use fee from what we charged if that is how the deed of gift was worded - and that created a nightmare in the instance of one photographer who died but had not designated an heir to those rights.

So, if the company records go back to the time when that model of mandolin was created, and they can prove it was done for them by one of their employees, it could strengthen their case if patent laws are similar to copyright laws.

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## StuartE

The concept of a genericized trademark is probably relevant to Gibson's claim.

A trademark is said to become genericized when it began as a distinctive product identifier but has changed in meaning to become generic. A trademark typically becomes "genericized" when the products or services with which it is associated have acquired substantial market dominance or mind share such that the primary meaning of the genericized trademark becomes the product or service itself rather than an indication of source for the product or service. A trademark thus popularized has its legal protection at risk in some countries such as the United States and United Kingdom, as its intellectual property rights in the trademark may be lost and competitors enabled to use the genericized trademark to describe their similar products, unless the owner of an affected trademark works sufficiently to correct and prevent such broad use.

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## Ivan Kelsall

From StuartE - _".. unless the owner of an affected trademark works sufficiently to correct and prevent such broad use"_. Just as Gibson are belatedly doing. Stuart's post makes a good point,but as i stated in my last post (underlined),would this automatically go to Gibson as being -_"... the first to use it in commerce"_ ?,
                                                                                        Ivan

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