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Thread: Gibson Must Now Face Antitrust Litigation in Heritage Case

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    Default Gibson Must Now Face Antitrust Litigation in Heritage Case

    Some relatively new information for those that wish to keep up on the latest legal antics. Don't believe this has been posted here. This information is from guitar.com posted 6 days ago.

    GIBSON MUST NOW FACE ANTITRUST LITIGATION IN HERITAGE CASE, US JUDGE RULES

    A judge has denied Gibson’s motion to dismiss Heritage’s Second Amended Complaint, ruling that it is not immune to antitrust litigation for trying to enforce its trademarks.

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    Default Re: Gibson Must Now Face Antitrust Litigation in Heritage Case

    Heh-heh.
    This is what happens when a company maintains an antagonistic attitude towards its colleagues.

    When the owner of my friendly neighborhood music store returned from the first NAMM show after Gibson emerged from bankruptcy, he said that the mood of the other manufacturers at NAMM was that they were ready to welcome the newly restructured Gibson back into the fold with open arms.

    As soon as it became apparent that the lawsuits would continue, they changed their minds and prepared for whatever was to come. This is one of the results.

    "What goes around comes around."

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    Default Re: Gibson Must Now Face Antitrust Litigation in Heritage Case

    Not that long ago, who woulda thought so many lawyers would make so much money in the guitar business...

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    Default Re: Gibson Must Now Face Antitrust Litigation in Heritage Case

    But not from actually playing them.

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    Default Re: Gibson Must Now Face Antitrust Litigation in Heritage Case

    “One useless man is a disgrace. Two or more is called a law firm.” John Adams
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    Default Re: Gibson Must Now Face Antitrust Litigation in Heritage Case

    Well, I'm no lawyer. But I'll try. An attorney might find flaws in my explanation.

    In a nutshell, the US has antitrust laws that are designed to prevent monopolies, and from forcing other companies out of business by engaging in anti-competitive behaviour.

    Gibson has been attempting to claim exclusive rights to build instruments with a number of shapes, such as the Les Paul, ES double cutaway hollow body, "Flying V" and "Explorer" shapes.

    Gibson is trying to prevent other companies from building guitars with these body shapes. They are doing this by claiming trademark protection for these shapes; and engaging in trademark lawsuits against other companies who also build instruments with these shapes. This has been going on for many years. Although many of these lawsuits have failed, Gibson continues to pursue this policy.

    In this particular case, Heritage and Gibson apparently had some sort of a legal agreement that allowed Heritage to build instruments with the Les Paul and ES shapes, and now Gibson is claiming trademark protection for these shapes and is threatening to sue Heritage for building these same instruments. Heritage has countered this by saying that Gibson's activities violate statutes that are designed to prevent a company from becoming a monopoly.
    Last edited by rcc56; Jun-15-2022 at 3:38am.

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    Default Re: Gibson Must Now Face Antitrust Litigation in Heritage Case

    How much of a threat could Heritage be? I know John Sabastion plays them but I've never seen anyone else although they're obviously out there.

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    Default Re: Gibson Must Now Face Antitrust Litigation in Heritage Case

    From a sales viewpoint, Heritage poses no threat at all.

    From a public relations standpoint, it is a threat, because many buyers don't like monopolies. And Gibson's constant lawsuits are already a PR problem. A lot of potential buyers don't like Gibson's bullying, and are no longer interested in buying their products.

    From a legal standpoint, an anti-trust judgement that holds up for the long term could cost Gibson a lot of money, and knock out any chances of their successfully winning lawsuits surrounding their trademarks.

    Gibson has styled itself has the biggest, baddest dog on the block. Now some of the other dogs are biting back. If the all the other dogs were to band together, they might be able to beat Gibson to a pulp. I'm sure some of the dogs have already discussed such an option, perhaps as recently as last week over dinner after the NAMM show closed for the day.

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    Default Re: Gibson Must Now Face Antitrust Litigation in Heritage Case

    Never having spent a day in law school, I always thought that a trademark referred to something that identified a company or a product, rather than something that a company made. If that is correct, then wouldn’t the design of an instrument, like any other product, be patented? I can see that the model name “Les Paul” could be trademarked, but as I understand it, the actual Les Paul guitar would be patented. Since a U.S. patent is valid for 20 years, a patent for the Les Paul guitar would have expired with President Nixon’s first term.
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    Default Re: Gibson Must Now Face Antitrust Litigation in Heritage Case

    Quote Originally Posted by Marcus CA View Post
    Never having spent a day in law school, I always thought that a trademark referred to something that identified a company or a product, rather than something that a company made. If that is correct, then wouldn’t the design of an instrument, like any other product, be patented? I can see that the model name “Les Paul” could be trademarked, but as I understand it, the actual Les Paul guitar would be patented.
    As an example of a trademark, the distintive Coca-Cola bottle shape is protected.

    In the same way, Gibson is claiming that certain shapes and flourishes which the company originated are distinctive enough that they serve as unique identifiers of the company.

    Trademark protection lasts as long as it is enforced.

    Unfortunately for Gibson's trademark lawsuits in the long run, another requirement for trademark protection is rigorous enforcement of the trademarked material. Gibson as a company did nothing to protect the instrument shapes for decades, allowing a proliferation of copies to flod the market... at least until venture capitalists took over, thinking they could file some lawsuits and make some quick cash.

    ----

    All of that is in addition to Gibson's Heritage lawsuit, wherein Gibson is arguing that there is actually a different agreement in place with Heritage, one at odds with the plain and simple language found in the signed agreement. Heritage is arguing that Gibson is using its influence and a heavy hand, including choking off suppliers to the entity which owns Heritage, in order to drive that entity from the market. Those attempts to use means beyond honest market competition to drive Heritage out, including some successful attempts to choke Heritage's sources, mean that Gibson can now be investigated for violating anti-trust laws.
    ----

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    Default Re: Gibson Must Now Face Antitrust Litigation in Heritage Case

    He who lives by the lawsuit dies by the lawsuit.

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    Default Re: Gibson Must Now Face Antitrust Litigation in Heritage Case

    Quote Originally Posted by Explorer View Post
    As an example of a trademark, the distinctive Coca-Cola bottle shape is protected.
    That's true, but the bottle is trademarked as a container, not as a product. People who see that bottle are going to assume --- especially with help from the label --- that the contents within are a specific soda of choice. So like that iconic white-letter script on the red background, the bottle is trademarked as an identifier of a product, not as the product itself (e.g., a Gibson Les Paul guitar).
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    Default Re: Gibson Must Now Face Antitrust Litigation in Heritage Case

    Quote Originally Posted by Marcus CA View Post
    Never having spent a day in law school, I always thought that a trademark referred to something that identified a company or a product, rather than something that a company made. If that is correct, then wouldn’t the design of an instrument, like any other product, be patented?
    To get back to your original misunderstanding, no, you are incorrect. In these particular Gibson cases, Gibson is claiming trademark / trade dress status for certain non-functional elements (distinctive shapes in headstock, body, etc.) which Gibson originated.

    I used the Coke bottle as an example, but if you are truly interested in the Gibson trademark lawsuit, read up on what their arguments are. There are plenty of write-ups available which explain clearly.

    Happy reading!
    ----

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    Default Re: Gibson Must Now Face Antitrust Litigation in Heritage Case

    Is it true that when they set up the company, Heritage, they actually made an application to name it:

    "Our Shared Cultural Heritage, the Founding Fathers and Apple Pie... Incorporated"?
    But "Heritage" was easier to remember.

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    Default Re: Gibson Must Now Face Antitrust Litigation in Heritage Case

    The other warped and twisted aspect of all of this is that Heritage was founded by the people who actually built and produced the guitars in question. The "owners" attempting to enforce the trademarks have had little to nothing to do with ever building, designing, creating or developing any guitars, mandolins or anything else of any real substance in the world.

    In the words of Paul Simon " ... I think of the road we are traveling on and wonder what's gone wrong."

  23. #16

    Default Re: Gibson Must Now Face Antitrust Litigation in Heritage Case

    I am surprised that anyone is shocked by big corporations acting "corporate." It is what they do -- if they can get away with it. For example, I remember in the 80's and 90's most of the big record labels were actually owned by only 3 big corporations...probably still are.

    Again, I'm not affected by any of this as I enjoy my vintage Gibsons and have no interest whatsoever in buying or owning a new Gibson. Also, the behavior of the current Gibson ownership has no bearing on liking vintage Gibson instruments or their wonderful "heritage", in my opinion.

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    Default Re: Gibson Must Now Face Antitrust Litigation in Heritage Case

    Me too, I’m not a long-haired hippee.
    If I had the money I’d buy a nice Gibson, or Heritage and record myself having fun playing it, and tell all of you guys how much I love it.
    (They are beautiful instruments after all).

    But I have a beautiful Vietnamese-built octave mandolin with Ashbury on the headstock, and I’m content to love that.

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    Default Re: Gibson Must Now Face Antitrust Litigation in Heritage Case

    Quote Originally Posted by Jeff Mando View Post
    I am surprised that anyone is shocked by big corporations acting "corporate." It is what they do -- if they can get away with it...
    Some may be shocked, but some of us are more disappointed than shocked.
    Big corporations or not, most instrument manufacturers have historically (at least in recent history) been supportive of one another at best, or at the least willing to peacefully coexist. Most, including the 'big boys' like Martin and Taylor have been included in this; willing to share information for the good of the instrument buying public. Top people at the major instrument manufacturing companies have been passionate about musical instruments, many of them having built their companies from small shops making hand made instruments.
    Rather than shock, there is more of a sense of "the real world" disappointingly entering this utopian world we've lived in and fooled ourselves into accepting as normal for instrument making companies.
    When the top brass comes to instrument making from a corporate background things can be different from a similar corporation where the top brass came from a lutherie background. Passion for instruments can produce eye rolls in the board room. It's business, doggone it! Many of us are saddened by the results, and yes, there can be a bit of gloating when said top brass gets a bit of comeuppance in the legal realm.

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    Default Re: Gibson Must Now Face Antitrust Litigation in Heritage Case

    Corporate or not, if Ford and Chevy can co-exist, and Coke and Pepsi can co-exist, it is a shame that Gibson feels obligated to maintain an adversarial relationship with their colleagues. Especially after emerging from bankruptcy.

    A little good-will might be more valuable to them than any money they might receive from legal actions, or any increase in sales resulting from paralyzing a competitor.
    But they don't see it that way. Too bad.

    One day, someone over there might wake up and figure out that they can't exist on the ghosts of rapidly aging and deceased rock stars forever. Young people will ask: "Duane who? Who's Mike Bloomfield? And who cares about that old guy who played for some group called Led Zeppelin?"

    They don't seem very interested in making mandolins these days. They might be interested in going to court over them though. Oh well.

  28. #20

    Default Re: Gibson Must Now Face Antitrust Litigation in Heritage Case

    Mr. Curleigh, who runs Gibson these days, ran Levi's for a long stretch in the 'teens.
    Before, during and after his stewardship Levi Strauss & Co. led the apparel industry in infringement litigation.

    Much is made of the fact that Curleigh can play some guitar.

    Mr. Andy Mooney, who runs Fender Musical Inst. Corp., made a pile working for Disney. Observing that little girls & their moms were coming to Disney Parks & entertainment events in home-made princess outfits he 'merchandised' the idea so Disney could make a few extra billions.

    Much is made of the fact that Mr. Mooney can play some guitar.

    I'm for capitalism. Gibson & Fender were formed to make money but were also based on good new ideas in their time. New ideas?

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    Default Re: Gibson Must Now Face Antitrust Litigation in Heritage Case

    Quote Originally Posted by Explorer View Post
    To get back to your original misunderstanding, no, you are incorrect. In these particular Gibson cases, Gibson is claiming trademark / trade dress status for certain non-functional elements (distinctive shapes in headstock, body, etc.) which Gibson originated.
    That's what I thought, but I don't see how they are going to win that case. All of the design examples that I came across are ones used either for representation (e.g., the bitten rainbow apple) or containment (e.g., the CC bottle) of a product. If the silhouette of a Les Paul guitar had been incorporated into the Gibson logo, I could see the possibility of a case, but as I mentioned before, a guitar itself seems to be something that would be patented --- and a patent only lasts for twenty years. A trademark is something that "identifies your goods and services," not the goods and services themselves. https://www.uspto.gov/trademarks/bas...tent-copyright

    Quote Originally Posted by thumbknuckle View Post
    I'm for capitalism. Gibson & Fender were formed to make money but were also based on good new ideas in their time. New ideas?
    Me, too. Martin Guitars was formed for the same purpose, and even though they also have produced a number of iconic guitars, I don't seem to come across many mentions of them suing other builders. They seem to be putting their money and attention into production and design, rather than litigation. Their Authentic line is a tremendous 21st-Century idea from both the musical and the capitalistic perspective.
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    Default Re: Gibson Must Now Face Antitrust Litigation in Heritage Case

    Imagine a world where they actually put aside all of that lawyer fearmongering and actually spent the effort on building great instruments.

    For a few years it was considered a badge of honor backstage at all of the luthier nerdfests to be able to show off your letter from their lawyers, like somehow that meant you had hit the bigtime. Now everyone is back to trading CITIES documentation and pre 1990 Brazilian rosewood receipts like a crackhead binging in 1985....

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    Default Re: Gibson Must Now Face Antitrust Litigation in Heritage Case

    To my thinking, Gibson is like Sears and Roebuck, part of the past and not the future. A name that was once proud but no longer.

  34. #24

    Default Re: Gibson Must Now Face Antitrust Litigation in Heritage Case

    Quote Originally Posted by Marcus CA View Post
    All of the design examples that I came across are ones used either for representation (e.g., the bitten rainbow apple) or containment (e.g., the CC bottle) of a product. If the silhouette of a Les Paul guitar had been incorporated into the Gibson logo, I could see the possibility of a case, but as I mentioned before, a guitar itself seems to be something that would be patented --- and a patent only lasts for twenty years. A trademark is something that "identifies your goods and services," not the goods and services themselves.
    I'm not too worried about convincing you, because it seems that you are arguing from incredulity --- that you don't believe it, because you can't picture the law going beyond your personal research. That's okay. Feel free to ignore me, and the following.

    However, for those interested in other product design elements of a finished product which, like the Gibson body shapes and headstock design, would be eligible for trademark protection, I believe the distinctive Ovation and Adamas headstock shapes, the parabolic bowl shapes, *and* the distinctive multi-soundhole epaulets are also trademarked material, even now under the current owner (which I believe is) Drum City.
    ----

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    Default Re: Gibson Must Now Face Antitrust Litigation in Heritage Case

    So: Gibson gonna come after all the companies and individual luthiers who build F-style mandolins, next? Surely a "distinctive silhouette," and easily traceable back to Orville G.

    Too late, I fear. And I'm just as glad.
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