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Thread: Gibson Must Now Face Antitrust Litigation in Heritage Case

  1. #26
    Registered User Marcus CA's Avatar
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    Default Re: Gibson Must Now Face Antitrust Litigation in Heritage Case

    Quote Originally Posted by Explorer View Post
    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.
    I thought that disagreements on the Café were supposed to be conducted respectfully. I guess I was wrong about that, as well.

    Interesting point about the shape of the Ovations. If that has been trademarked, then that gives strength to Gibson’s argument about their Les Pauls, as well as Allen’s concern about F-5 builders —- especially those who have publicly stated that they brought a Loar into their shop to measure in great detail for their early builds. And all those builders who have clearly based their models on Martins …
    Last edited by Marcus CA; Jun-18-2022 at 5:19pm.
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  3. #27

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

    My view is that Gibson is probably right on all their points, actually. But, it looks like they won't be able to enforce it legally for several reasons.

  4. #28

    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. 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.
    The general legal definition for "trademark" (legal definitions are subject to change) is it is something that identifies the source of the goods. That "something" can be a logo, name, bottle shape, smell, taste, sound and etc.

    When we think of the general category of "guitar" the iconic images that comes to mind can be anything but generally a spanish acoustic or a stratocaster for electric. When we look at an F5 mandolin in silhouette and are asked to name the "source" of that type of mandolin, the general consensus will be it originates from Gibson. That is the test of a trademark and how it is applied by the courts.

    Trademark rights are earned by use in commerce. Registration has always been optional but comes with a presumption of being correct. Trademark rights can only be considered de facto abandoned (not prima face) if any demonstrable "non use" is accompanied by an "intent" to abandon.

    I believe Gibson hold's valid trademark registrations for some of their body shapes. Not positive about the 335, which is the model in contention with Heritage, but I'll assume that's the case for this. If you read the sequence of events behind this case you'll note that Gibson is defending itself from litigation brought on by a consortium of makers with Heritage being part of that, so this isn't a case of Gibson being the aggressor. I'm not defending Gibson, but I bristle with everyone rushing to criticize before examining what's actually happening.

    This was an interim motion that keeps one of the pleadings a live trial matter. While I'm sure Gibson would have rather prevailed, all the judge has done is said there is a valid legal question to be answered which the parties will be able to address through their evidence and briefs.

    Now Heritage has to prove that what Gibson is doing is monopolizing the entire guitar market by restricting commerce on this one particular body shape which Gibson happens to hold a valid federal trademark which is presumed to be correct. That's a tall order. Especially when there is a documented agreement between Gibson and Heritage wherein Heritage acknowledges Gibson's ownership of that body shape and ability to put controls and restrictions on how others use it, if at all, which are legitimate rights falling in train with rights ownership.

    It will be interesting to see how this plays out.
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  6. #29

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

    Quote Originally Posted by Verne Andru View Post
    Trademark rights are earned by use in commerce. Registration has always been optional but comes with a presumption of being correct. Trademark rights can only be considered de facto abandoned (not prima face) if any demonstrable "non use" is accompanied by an "intent" to abandon.
    There's another requirement to retain trademark: one must rigorously defend against infringement. There are many prolonged decades wherein Gibson did not do so. That lack of vigorous defense is what will likely doom Gibson's belated actions.

    That is separate from the Gibson / Heritage lawsuit, wherein Gibson has a signed agreement with Heritage. Gibson is claiming in court that the agreement with Heritage contains things not apparent in the plain language of that agreement. The judge so far isn't buying that argument, but tye suit continues. More below....

    Quote Originally Posted by Verne Andru View Post
    I believe Gibson hold's valid trademark registrations for some of their body shapes. ...If you read the sequence of events behind this case you'll note that Gibson is defending itself from litigation brought on by a consortium of makers with Heritage being part of that, so this isn't a case of Gibson being the aggressor. I'm not defending Gibson, but I bristle with everyone rushing to criticize before examining what's actually happening.
    Hmm.

    You might bristle, but this Heritage case is about Gibson taking actions which are against anti-trust law, with the goal of choking off and killing competition instead of taking the legal route of going to court. This is like someone being able to settle with a neighbor for reported property damage, but attempting to solve things permanently by burning the neighbor's business down instead.

    It's curious that you bristle at what you think is others rushing to judgment without examining what's actually going on, while you are actually not understanding the basis of the Heritage anti-trust lawsuit, or (in the other case) how lack of rigorous enforcement will negatively affect a trademark.

    Quote Originally Posted by Verne Andru View Post
    Now Heritage has to prove that what Gibson is doing is monopolizing the entire guitar market by restricting commerce on this one particular body shape which Gibson happens to hold a valid federal trademark which is presumed to be correct. That's a tall order. Especially when there is a documented agreement between Gibson and Heritage wherein Heritage acknowledges Gibson's ownership of that body shape and ability to put controls and restrictions on how others use it, if at all, which are legitimate rights falling in train with rights ownership.
    The bold part is incorrect. What Heritage has to prove is that Gibson used its market share and influence to shut down supplies to Heritage, in order to force Heritage from the market. That anti-competitive behavior is *not* lawful, even when attempting to enforce what one claims are one's rights.
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  8. #30
    Registered User j. condino's Avatar
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    Default Re: Gibson Must Now Face Antitrust Litigation in Heritage Case

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  10. #31
    Registered User Simon DS's Avatar
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    Default Re: Gibson Must Now Face Antitrust Litigation in Heritage Case

    Gibsons are beautiful, all the same.
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    Default Re: Gibson Must Now Face Antitrust Litigation in Heritage Case

    <inappropriate for this forum, unnecessary and unrelated to this discussion.>
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    Default Re: Gibson Must Now Face Antitrust Litigation in Heritage Case

    Regarding vigorous enforcement of trademark infringement, there have been copies of well-known Gibson and Martin instruments made for decades, coming from Pacific rim countries and these copies continue to this day. Many YouTube videos exist of reviews of "Chibson" Les Paul copies that say Gibson on the headstock, say Made in America and have serial numbers. This practice continues and no doubt has cost Gibson many sales of guitars and yet no one seems to be outraged. You name a successful product and there will be copies made. Failure to vigorously attempt to stop the import and sales of these fraudulent products which has gone on for so long certainly casts a long shadow over any attempts now to claim trademark infringement. Gibson going after Heritage now seems like picking the low hanging fruit.

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  14. #34
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    Default Re: Gibson Must Now Face Antitrust Litigation in Heritage Case

    Quote Originally Posted by Hudmister View Post
    ...there have been copies of well-known Gibson and Martin instruments made for decades, coming from Pacific rim countries ...
    And the ones that originate in the US? Forgeries are forgeries, they shouldn't be allowed but honestly, Martin and Gibson products have been copied for decades in this country with and without the Martin and Gibson labels.
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  16. #35

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

    Quote Originally Posted by Explorer View Post
    There's another requirement to retain trademark: one must rigorously defend against infringement. There are many prolonged decades wherein Gibson did not do so. That lack of vigorous defense is what will likely doom Gibson's belated actions.

    That is separate from the Gibson / Heritage lawsuit, wherein Gibson has a signed agreement with Heritage. Gibson is claiming in court that the agreement with Heritage contains things not apparent in the plain language of that agreement. The judge so far isn't buying that argument, but tye suit continues. More below....

    Hmm.

    You might bristle, but this Heritage case is about Gibson taking actions which are against anti-trust law, with the goal of choking off and killing competition instead of taking the legal route of going to court. This is like someone being able to settle with a neighbor for reported property damage, but attempting to solve things permanently by burning the neighbor's business down instead.

    It's curious that you bristle at what you think is others rushing to judgment without examining what's actually going on, while you are actually not understanding the basis of the Heritage anti-trust lawsuit, or (in the other case) how lack of rigorous enforcement will negatively affect a trademark.

    The bold part is incorrect. What Heritage has to prove is that Gibson used its market share and influence to shut down supplies to Heritage, in order to force Heritage from the market. That anti-competitive behavior is *not* lawful, even when attempting to enforce what one claims are one's rights.
    I believe this may lack some context. The legal entity known as Gibson has been doing business since the late 1800s. Trademark law was enacted in the US in 1947 (iirc) by way of the Lanham Act; previously businesses relied on copyright law to protect their "brand" assets. The intent of the act, and US trademark law, is to help consumers avoid confusion in the market by specifically providing a singular entity a monopoly on the goods in question.

    In this case we know for sure Gibson invented the guitar shape in question, Heritage acknowledges Gibson's ownership in writing, Gibson has been policing and regulating their marks by engaging in license agreements and litigation and Gibson has never issued a declaration of abandonment for any of their product. All the rest is arguable.

    When I was doing marketing in the pre-internet period trademarks were part of the equation, but not given the prominence they have today. Many company's relied on using a TM and not registering due to expense and complexities of communication. Trademarks were generally graphic in nature, adding more expense for designs and etc. Wordmarks (fast and easy) were just starting to be used at the state level, but weren't that important at that point in time.

    In the internet-enabled world, trademarks, enabled by wordmarks, have become absolutely critical for businesses to stay in business. Things as simple as a URL now require some IP ownership rights to retain and the go-to has become a registered trademark. From shopping platforms like Amazon to social media, if you don't have the registered trademark you are not in business. This simply was not the case even 10 years ago. The move to this point has been long and molasses slow until we hit internet where its importance becomes paramount and trademark ownership skyrockets in priority.

    Things moved much slower before google came along. Finding out what was going on in the market wasn't fast or easy. Litigation has always been expensive and uncertain, so risk-adverse companies tend to use that as a last resort. Policing and enforcement today is far easier with google, email and etc. In the days Gibson is said to have been lax in enforcement, everything was done manually at great expense in time and money and suffering constraints and limitations that don't apply in our digital world.

    This goes to the root of the arguments being made that Gibson "abandoned" their trademarks. AFAIK the marks they are defending have been registered and the law is currently such that abandonment needs to be accompanied with intent to abandon. It is practice for courts to consider all mitigating circumstances, including the general practices of the time in question, when weighing cases, so we'll have to wait and see how the cards play out. A judge with gray hairs will get it; a younger judge might not.

    As far as Gibson not defending their rights - on the one hand there is a very vocal camp that decries Gibson as a big bad bully whenever they actively pursue enforcing their rights, then there are those that argue Gibson hasn't done enough to litigate each and every counterfeiter as soon as they release their knock-off product. As a superior court judge once counseled me: there is his truth, her truth and the real truth somewhere between. Only evidence weighed by a court of competent jurisdiction can sort this out.

    You may be right about the anti-trust portion of the suit and I look forward to seeing what evidence is adduced and what the outcome is, but I maintain Heritage has a very difficult road ahead.
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  18. #36
    Mando accumulator allenhopkins's Avatar
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    Default Re: Gibson Must Now Face Antitrust Litigation in Heritage Case

    When Takamine guitars first hit America, they were stone copies of Martins, down to the typeface of the headstock decals. After a few years they became more distinctive, and now they no longer look like copies. I didn't hear of any Martin lawsuits against Takamine or their importers.

    I'd guess that once an instrument line gets established, the makers don't feel as much need to clone existing respected instrument models. However, F-model mandolins are one area where there seems to be less variation. Most modern makers have deviated little from the pattern Gibson established a century ago. We see subtle -- and not-so-subtle -- departures from the basic form. Some of these are introduced just to save production costs; others (Rigel, Giacomel etc.) seem to be attempts to establish an independent form, that's clearly derived from the traditional F-model but shows significant variance. These makers would say "improvement," but it's not clear the market agrees with that.

    One way to look at the issue is to say that the old-line manufacturers shouldn't worry if an upstart wants to make a "clone" instrument -- but aimed at a market niche the old-liner doesn't fill. These could be, for example, inexpensive starter instruments that resemble established lines: beginners buy $250 "Les Pauls," and once they have progressed and "raised their sights," buy a real Les Paul as second or third instrument. The "cheapos" act as a "farm system" for the "major league" manufacturers, in that perspective.

    Could be the case with F-5's; the Rogue or Rover leads eventually to a Collings, Weber or Gibson. But allowing imitation, as Gibson has done for over a century with the F-model mandolin, precludes Gibson limiting use of its silhouette to entry level mandolins. Collings and Weber, to say nothing of import manufacturers and individual luthiers, build F's that compete directly with Gibson at G's preferred price points. Not a "farm system," but a competitive "major league."

    Nothing Gibson can do about it now. They've tolerated "cloning" of the F-model for too long to seek legal recourse. But it's interesting that they'll sue over the shape of a truss rod cover, and not over the complete concession of Orville G's design, to "public domain" status. As long as you don't stick "Gibson" insignia on them, you can build as many "F-5's" as you please.
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  19. #37
    Registered User Simon DS's Avatar
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    Default Re: Gibson Must Now Face Antitrust Litigation in Heritage Case

    Quote Originally Posted by MikeEdgerton View Post
    And the ones that originate in the US? Forgeries are forgeries, they shouldn't be allowed but honestly, Martin and Gibson products have been copied for decades in this country with and without the Martin and Gibson labels.
    Part of a successful marketing plan is to get your competitors to mimic your funny product while you remind everyone that yours is the original.

  20. #38

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

    Quote Originally Posted by allenhopkins View Post
    When Takamine guitars first hit America, they were stone copies of Martins, down to the typeface of the headstock decals. After a few years they became more distinctive, and now they no longer look like copies. I didn't hear of any Martin lawsuits against Takamine or their importers.

    I'd guess that once an instrument line gets established, the makers don't feel as much need to clone existing respected instrument models. However, F-model mandolins are one area where there seems to be less variation. Most modern makers have deviated little from the pattern Gibson established a century ago. We see subtle -- and not-so-subtle -- departures from the basic form. Some of these are introduced just to save production costs; others (Rigel, Giacomel etc.) seem to be attempts to establish an independent form, that's clearly derived from the traditional F-model but shows significant variance. These makers would say "improvement," but it's not clear the market agrees with that.

    One way to look at the issue is to say that the old-line manufacturers shouldn't worry if an upstart wants to make a "clone" instrument -- but aimed at a market niche the old-liner doesn't fill. These could be, for example, inexpensive starter instruments that resemble established lines: beginners buy $250 "Les Pauls," and once they have progressed and "raised their sights," buy a real Les Paul as second or third instrument. The "cheapos" act as a "farm system" for the "major league" manufacturers, in that perspective.

    Could be the case with F-5's; the Rogue or Rover leads eventually to a Collings, Weber or Gibson. But allowing imitation, as Gibson has done for over a century with the F-model mandolin, precludes Gibson limiting use of its silhouette to entry level mandolins. Collings and Weber, to say nothing of import manufacturers and individual luthiers, build F's that compete directly with Gibson at G's preferred price points. Not a "farm system," but a competitive "major league."

    Nothing Gibson can do about it now. They've tolerated "cloning" of the F-model for too long to seek legal recourse. But it's interesting that they'll sue over the shape of a truss rod cover, and not over the complete concession of Orville G's design, to "public domain" status. As long as you don't stick "Gibson" insignia on them, you can build as many "F-5's" as you please.
    Do you know if Gibson has a valid trademark registration for the F-5?
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  22. #39

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

    Quote Originally Posted by Simon DS View Post
    Part of a successful marketing plan is to get your competitors to mimic your funny product while you remind everyone that yours is the original.
    Yeah, in the early days of the software business it was considered a good thing to have a 10 - 15% piracy rate because it expanded your products usage. When the pirates came to a point where they had to buy, they would tend to buy what they were familiar with.
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  23. #40
    Moderator MikeEdgerton's Avatar
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    Default Re: Gibson Must Now Face Antitrust Litigation in Heritage Case

    Quote Originally Posted by Simon DS View Post
    Part of a successful marketing plan is to get your competitors to mimic your funny product while you remind everyone that yours is the original.
    That might be a true if it had been part of a strategic plan. I'm pretty sure Gibson got to this point by thinking they didn't need a strategic plan.
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    Default Re: Gibson Must Now Face Antitrust Litigation in Heritage Case

    Quote Originally Posted by Verne Andru View Post
    Do you know if Gibson has a valid trademark registration for the F-5?
    None has been shown here over the years. If they do it has never surfaced on the Cafe and I think it would have.
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  26. #42
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    Default Re: Gibson Must Now Face Antitrust Litigation in Heritage Case

    Gibson's trademark registration page: http://www.gibson.com/en-US/Trademar...son-Brands-Inc

    The F-5 body shape is not included on this page.
    However, the peghead shape with a poor sketch of the fern inlay pattern is.

    ------------------------------------------------------------------------------------------------

    Note: Gibson has filed opposition to Collings' attempt to register their "haircut" peghead shape, which Gibson has never used.
    Gibson is claiming that it "impairs the distinctiveness" of three of their own designs, one of which is similar to the shape used on Vega cylinder-back mandolins and, except for the cutout, also similar to the shape used on many upper line Martin mandolins. And by the way, it was Gibson's current management that filed the motion of opposition, despite their frequent claims that Gibson's legal confrontations were initiated by the pre-bankruptcy management and the current management is only following through.

    In a recent press release, Gibson stated that they want to move from "confrontation to co-operation." Words are cheap. If they want to show that they mean what they're saying, they'll have to drop some of their lawsuits. Don't hold your breath, folks.

    I'm too lazy to attach any more links. Anyone who is interested can easily find links to the above on google.

  27. #43
    Registered User Simon DS's Avatar
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    Default Re: Gibson Must Now Face Antitrust Litigation in Heritage Case

    Yes, those at the top wanted their product to be emulated and saw that as an endorsement of themselves rather than a possible future threat to their business.

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  29. #44

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

    Quote Originally Posted by MikeEdgerton View Post
    And the ones that originate in the US? Forgeries are forgeries, they shouldn't be allowed but honestly, Martin and Gibson products have been copied for decades in this country with and without the Martin and Gibson labels.
    They're only "forgeries" if they carry a dishonest label. That is not the case here. They may be "copies" but that is an entirely different thing.

  30. #45
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    Default Re: Gibson Must Now Face Antitrust Litigation in Heritage Case

    Next year's headline:

    Gibson Brands again files bankruptcy after suing itself and losing.

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  32. #46

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

    Quote Originally Posted by rcc56 View Post
    Next year's headline:

    Gibson Brands again files bankruptcy after suing itself and losing.
    Very Good!

    Reminds me of this 'headline:"

    https://www.theonion.com/august-5-1914-1819588242

  33. #47

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

    Quote Originally Posted by Verne Andru View Post
    I believe Gibson hold's valid trademark registrations for some of their body shapes. Not positive about the 335, which is the model in contention with Heritage, but I'll assume that's the case for this. If you read the sequence of events behind this case you'll note that Gibson is defending itself from litigation brought on by a consortium of makers with Heritage being part of that, so this isn't a case of Gibson being the aggressor. I'm not defending Gibson, but I bristle with everyone rushing to criticize before examining what's actually happening.
    I am very impressed with the level of knowledge on this forum and the expert opinions posted here for all to read. I really do appreciate being able to eavesdrop on the discourse. Some of you are obviously very well educated in the finer points of law; I am not. I can only hope to rely on what I hear, what I've read and what I see.

    What I perceive, right or wrong, is a company's clumsy and desperate attempt to put things back together after years of allowing things to fall apart. Maybe they aren't technically the aggressor in this particular case, but to me as a bystander, they seem (generally) to be acting in a heavy-handed fashion. I've read some of the letters sent to 'boutique builders' and like many of us on this forum, I remember this somewhat recent message posted by Gibson.



    Just speaking for my uneducated self, they seem like aggressors.
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  34. #48
    Registered User Simon DS's Avatar
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    Default Re: Gibson Must Now Face Antitrust Litigation in Heritage Case

    …..
    Last edited by Simon DS; Jun-21-2022 at 3:35am.

  35. #49
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    Default Re: Gibson Must Now Face Antitrust Litigation in Heritage Case

    Some real information concerning trademarks and patents applicable to mandolins:

    Gibson holds trademarks or patents for the following items:

    1. The F-5 peghead shape, specifically with fern inlay.
    2. The design for the flowerpot peghead inlay.
    3. The bell shaped truss rod cover design.

    That's it.

    They do not hold any trademarks or patents for any mandolin body shapes, or for the A style paddlehead or snakehead peghead shapes.
    Nor do they hold any for soundhole shapes, rosettes, bindings, or tailpiece designs.

    All of their patents for pickguard and bridge designs expired before 1950.

    A style body and peghead shapes are fair game for anyone.
    So is the F style scroll body shape.

    But the F style peghead design with fern inlay is trademarked.
    Several builders have maintained the peghead shape but changed the peghead inlay design.

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  37. #50

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

    my 2c:
    1. Gibson should learn from the microsoft get rich quick approach - they licensed ms dos to all and sundry because ibm didnt have an exclusive agreement with them and used the money for other innovations
    2. Gibson designs seem instrument specific e.g., f fern inlay peghead so Dillion mandolins which have the similar to 335 shape should be ok. Fender were clever using their tele shape for their mandocaster but I see only have the A shape now so opportunity awaits a mando maker presumably

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