Gibson Gets An Injunction Over PaperJamz; Retailers Ordered To Stop Selling Them

from the did-you-get-one-for-Christmas? dept

If you happened to have received a PaperJamz guitar toy for the holidays this year, you may want to hang onto it as a collectors' item. In November, we wrote about how Gibson, the famed guitar company, was suing a bunch of companies over PaperJamz. The main target, of course, was Wowwee, the toymaker who makes the devices (which are plastic -- not actually paper -- guitars with a capacitive touch screen that turn your air guitaring into something a bit more real), but Gibson also sued a bunch of retailers, including Walmart, Amazon, eBay, Target, etc. for selling the toys.

Eric Goldman now lets us know that Gibson successfully got an injunction against all the defendants, with the court ordering them to stop selling the toys, just days before Christmas, though the defendants quickly appealed the ruling. The full injunction is embedded below.

When we first posted this story, there was an interesting discussion in the comments. Many people felt that Gibson was definitely in the right here -- as the designs did seem pretty clearly to copy Gibson designs. I still question how much (if any) "harm" this actually does to Gibson, and wondered why Gibson wouldn't just use this as an opportunity to market its own products more -- and maybe even offer upsell opportunities for PaperJamz users.

However, what may have been more interesting were claims in the comments that Gibson's lawyers misidentified a bunch of websites in the initial lawsuit. The lawsuit claimed that Wowwee's own websites acknowledged that the styling was modeled after Gibson's guitars, but apparently, at least some of those websites may not have actually been Wowwee's at all, but third parties, who were simply pushing people to Amazon affiliates or other sites. If that's the case, it calls into question certain aspects of the rest of Gibson's case as well.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    Anonymous Coward, Dec 27th, 2010 @ 7:20pm

    So you are saying because the lawyers perhaps had a hard time ti figure out which sites were real and which sites were just affiliate sites, that the rest of their claims are suspect?

    Desperate and whiny, that seems to be the TD trend this month.

     

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  2.  
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    abc gum, Dec 27th, 2010 @ 7:44pm

    Re:

    So, you are saying that a plastic toy is the same thing as a real guitar? Talk about desperate, but that seems to be the trend in "intellectual property" this month - errr I mean always.

     

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  3.  
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    Anonymous Coward, Dec 27th, 2010 @ 8:04pm

    Indeed...

    I've often looked at a $12.95 paper guitar and thought "Wow, that's an incredible price for a Les Paul Steve Clark Page triple gold humbucker limited edition. Those normally go for $5K+." Then the hippy store clerk slaps me.

     

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  4.  
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    Anonymous Coward, Dec 27th, 2010 @ 8:13pm

    If it make sense for racing game makers to licence the use of design and specification on car models, it make sense to licence the design if they're really knowingly using Gibson's design.

    Not that in any of these 2 cases there's possibility of introducing any "harms", though...

     

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  5.  
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    Anonymous Coward, Dec 27th, 2010 @ 8:34pm

    Re: Gibson needs to sell this shit themselves

    Gibson sux

     

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  6.  
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    Anonymous Coward, Dec 27th, 2010 @ 8:50pm

    Re: Re:

    Gibson has the right to choose how they are represented in the marketplace. They want nothing to do with these plastic or paper replicas. That is there choice, and not a choice that should be made for them by anyone else.

    How hard is that to understand?

     

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  7.  
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    Chris in Utah (profile), Dec 27th, 2010 @ 9:12pm

    Re: Re: Re:

    When you restrict the choice of another to do anything... Oh wait! Lawlz

     

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  8.  
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    Anonymous Coward, Dec 27th, 2010 @ 9:24pm

    Re: Re: Re: Re:

    the air guitar company could easily sell products without using the gibson name or by replicating their products in appearance. It isn't really hard. They made a choice to replicate without permission.

    Again, how hard is any of this to understand? I mean, even guys like RD can catch this.

     

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  9.  
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    RD, Dec 27th, 2010 @ 9:31pm

    Re: Re: Re: Re: Re:

    "Again, how hard is any of this to understand? I mean, even guys like RD can catch this."

    And a Merry FUCK YOU to you too asshole.

     

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  10.  
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    Kaden (profile), Dec 27th, 2010 @ 9:43pm

    Not unexpected

    Gibson has a long and storied history of litigous behavior going back to the Norlin years and the EBay staple 'Lawsuit Ibanez' guitars. They took a shot at Activision (and a slew of retail giants) a few years ago over the entire Guitar Hero concept and lost resoundingly.

    Some things never change.

     

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  11.  
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    Anonymous Coward, Dec 27th, 2010 @ 9:55pm

    Re: Re: Re:

    It is not at all hard to understand, unless you happen to be of the view that any and all attempts to preserve your position in the market are simply unwarranted.

    What I do find interesting is that this is a PI, preliminary relief that is often requested and seldom granted. It suggests that the case is not so simple as many here seem inclined to believe.

     

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  12.  
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    Chris in Utah (profile), Dec 27th, 2010 @ 10:06pm

    Re: Re: Re: Re: Re:

    When i have to ask permission to wipe a certain way then its gone way too far.

    As for the above comment apparently you didn't make the logic jump so here it is. When you restrict the choice to do anything for any reason you have a problem.

     

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  13.  
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    Mike Masnick (profile), Dec 27th, 2010 @ 11:17pm

    Re: Re: Re: Re:

    It is not at all hard to understand, unless you happen to be of the view that any and all attempts to preserve your position in the market are simply unwarranted.

    I see. So that's the position held by Wowwee, Amazon, Walmart, Best Buy and others?

    Please. Grow up.

    No one says that "any and all attempts to preserve your position in the market are simply unwarranted." No one.

    In fact, we're all for companies preserving their position in the market: so long as they do so without abusing the law.

     

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  14.  
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    AlexNagy (profile), Dec 28th, 2010 @ 4:27am

    Re:

    Why yes. That really does make their claims suspect because it shows that they really didn't do their homework before filing the lawsuit.

    Also, I'm with TD. There is no damage being done to Gibson.

     

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  15.  
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    Anonymous Coward, Dec 28th, 2010 @ 6:34am

    Re: Re: Re: Re: Re:

    The case has enough merit to go in front of the courts. "Abusing the law" is your subjective opinion, and thankfully the case won't be decided by someone with a heavy bias.

    Right or wrong in your opinion, the case is valid.

     

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  16.  
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    Anonymous Coward, Dec 28th, 2010 @ 6:58am

    Re: Re: Re: Re: Re: Re:

    Well how are we going to find out if they are abusing the law if they don't go to court. The problem is taking something like this to court is that they can really loose big if they don't intimidate the opposition from taking them on.

     

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  17.  
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    abc gum, Dec 28th, 2010 @ 7:25am

    Re:

    That sort of justification is used by children when one of them gets away with it and the other is caught.

     

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  18.  
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    Anonymous Coward, Dec 28th, 2010 @ 7:36am

    Re: Re: Re: Re: Re:

    Please explain how what Gibson has done here is "abusing the law"?

    A fundamental purpose of law in society is to provide a means by which to resolve disputes between parties.

    Comments here many times seem to suggest that to resort to this means is an ignoble act.

    As for the retailers about whom you express concern, doubtless they have purchase contracts in place providing them adequate recourse against their supplier.

    If I may ask a favor. Stop with the thinly veiled personal insults. It is, as difficult as it may seem to believe by some who frequent you sight, quite possible that one providing comments actually has relevant experience that influences such comments.

     

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  19.  
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    JezuitX, Dec 28th, 2010 @ 7:58am

    This is so dangerous

    Someone really needs to go back and fight this. If they don't this is going to lead us down a dangerous road where if any two products look remotely alike the one first on market can sue the other. I mean as if our legal system isn't strained enough do we really need Matel suing every Barbie knock off on the market or other B/s lawsuits?

     

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  20.  
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    average_joe (profile), Dec 28th, 2010 @ 8:06am

    Re: Re: Re: Re: Re: Re:

    Please explain how what Gibson has done here is "abusing the law"?

    Funny how when the victims asserts their rights, they're "abusing the law." But the defendants' conscious decision to violate the victims' rights is never marked as abuse. Funny that. On techdirt, the plaintiff is the abuser and the defendant is the victim.

     

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  21.  
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    average_joe (profile), Dec 28th, 2010 @ 8:11am

    Re:

    So you are saying because the lawyers perhaps had a hard time ti figure out which sites were real and which sites were just affiliate sites, that the rest of their claims are suspect?

    Desperate and whiny, that seems to be the TD trend this month.


    I think it's just lazy. It's like with the Columbia Pictures v. Fung we were talking about in another thread. The techdirt logic seems to be if you can find one or two things that are arguably different than how the plaintiff or the court purports them to be, then the whole thing is suspect and no more analysis is needed. Never mind the fact that all of the other facts could turn out to be true and that the evidence could overwhelmingly be against the defendant.

    It's a faith-based approach if there ever was one.

     

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  22.  
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    MD2000, Dec 28th, 2010 @ 8:32am

    Yes, That's the issue...

    To what extent does the designer/creator own a design? Do I need to pay GM or Ferrari a royalty and get permission if I make a plastic racing car that looks identical to their real product? Or only if I put their logo on it? Or not if it's slightly different? How different?

    You own your designs, and copying them, even in models, is a violation of your design; if done poorly, can cheapen your brand or bring it into disrepute. ("Oh, look honey, it's a kid's toy Stratocaster made of melamine and convered in lead paint! Let's get one for Junior!")

    If the lawyers confused a few web sites, then who cares? The fact that 3rd parties also made the association of appearance reinforces the claim that the imitation was sufficient to confuse the public, even if the manufacturer itself never claimed they were imitations.

     

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  23.  
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    Pip, Dec 28th, 2010 @ 8:45am

    "The fact that 3rd parties also made the association of appearance reinforces the claim that the imitation was sufficient to confuse the public"

    I think that was the point Gibson was trying to make by including them. However, looking back, Gibson has lost cases against actual guitar makers that copied the shape because they simply couldn't convince anyone that buying a PRS that looked like a Gibson, was actually a Gibson. I think anyone looking at this case will see a paper guitar and a real Gibson guitar and be asked if they're confused which is which and they will simply laugh.

    Unless someone was actually using the Gibson name. I don't think Paperjamz ever did, but it seems people who sold their product did, so maybe that might be enough for something?

     

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  24.  
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    Anonymous Coward, Dec 28th, 2010 @ 8:55am

    Re: Re:

    I agree. Recorded music sales go down, it's a clear indiction of how the public feels. Recorded music sales go up, and it's a fluke, a one off, maybe a mistake in reporting, or perhaps because there is a new album from a dead guy being sold.

    It is faith based. The funniest part around here is if you start picking at the edges, someone from TD will come along and attack you personally, and say that "you just don't understand". It is very similar to the methods used by televangelists and Fox News commentators.

     

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  25.  
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    Mike Masnick (profile), Dec 28th, 2010 @ 10:14am

    Re: Re: Re: Re: Re: Re:

    I will note that you did not respond to my particular point. You claimed that the position of those of us on the site is "any and all attempts to preserve your position in the market are simply unwarranted."

    That's a figment of your imagination.

    Please explain how what Gibson has done here is "abusing the law"?


    The purpose of trademark law is to prevent consumer confusion. There is no indication that anyone here was confused.

    A fundamental purpose of law in society is to provide a means by which to resolve disputes between parties.


    Sure. If there's a legitimate dispute. The problem -- which we point out here many times -- is that many use the laws not as they were intended (to resolve a realistic dispute), but as a business tool to stamp out legitimate competition or to prevent completely reasonable operations from moving forward that have no impact on their business.

    Comments here many times seem to suggest that to resort to this means is an ignoble act.


    No. No one has ever suggested that all legal disputes are meaningless. Why would you continue to stand behind something that is an outright fabrication? The complaint is about specific abuses of the law to stop reasonable operations.

    As for the retailers about whom you express concern, doubtless they have purchase contracts in place providing them adequate recourse against their supplier.

    Your claim was that the people who thought this was an unreasonable lawsuit must believe that "any and all attempts to preserve your position in the market are simply unwarranted." Considering that there are many large retailers who think the lawsuit is unwarranted, it seems you are saying those retailers feel that way.

    Kind of funny the double standard you have. Apparently, only the plaintiff is justified in believing in the legal system. When the defendants point out that the law is being misapplied, well, they just don't believe the plaintiff should be able to hold its place in the market?

    Really?

    If I may ask a favor. Stop with the thinly veiled personal insults.

    This from the guy who *in this very thread* lied about our position and pretended that we believed "any and all attempts to preserve your position in the market are simply unwarranted."

    Anyway, I find it amusing that you think calling you on flat out fabricating what I've said is a "thinly veiled personal insult."

    Apparently you feel that you can dish out insults whenever you like, but someone calls you on it, and that's an insult to you? Grow up.

     

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  26.  
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    Anonymous Coward, Dec 28th, 2010 @ 10:23am

    Re: Re: Re: Re: Re: Re: Re:

    The purpose of trademark law is to prevent consumer confusion. There is no indication that anyone here was confused.

    Part of the preservation of that position is to assure the public that the company, it's brand, it's logo, it's image, and it's products are not involved in other businesses that could hurt the brand in the public's eye.

    The implication here is that Gibson supports these products, endorses in some manner the product, and wants to be associated with the product. They do not.

    This from the guy who *in this very thread* lied about our position and pretended that we believed "any and all attempts to preserve your position in the market are simply unwarranted."

    Personal attacks are a horrible thing at any level. Failing to respect the wishes of an anonymous poster to remain anonymous is one of the great downfalls of TD, IMHO. What you are doing is discouraging opinions that are unlike your own, rather than considering the other side of things. It makes your views seem weaker and less informed. It also makes it look like you will defend your opinion even if it is shown to be extreme or even wrong.

    This case looks like Gibson doing what it needs to do to protect it's trademarks and image in the public eye. That is pretty much exactly what the trademark system was created to do.

     

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  27.  
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    Anonymous Coward, Dec 28th, 2010 @ 10:27am

    Re: Yes, That's the issue...

    Fender is actually a good example. They really failed to protect the market on "strat copy" guitars, and as a result, they flood the market. Heck, my local wal-mart sells a cheap knockoff under $100. It's a piece of crap, but it looks exactly like the real thing (even has the lettering of the same style, look, and location on the headstock).

    Did it ruin their market? I am not sure. But I do know that plenty of people play knockoff stats, while stores sit full of new real strats that aren't being sold. That says a bunch.

     

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  28.  
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    Almost Anonymous (profile), Dec 28th, 2010 @ 10:52am

    Re: Re: Re:

    """They want nothing to do with these plastic or paper replicas."""

    Don't be naive. They want plenty to do with these 'plastic or paper replicas.' They want Wowwee to send them wads of cash and then all will be well.

    Having said that, as much as I hate to admit it, I feel like Gibson has a pretty fair claim here. I agree that they are going about this in the usual idiotic ham-handed manner, but it would probably have been a good idea on the part of Wowwee to contact Gibson about a licensing agreement.

     

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  29.  
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    tdp, Dec 28th, 2010 @ 11:57am

    Re: Re: Yes, That's the issue...

    I wouldn't use Fender as an example they lost the original case back in the 70's but they have the headstock locked up and most of the quality aftermarket necks and bodies are licensed by Fender.

    And they sell plenty of Strats at all price points from $100 to Over 10,000

     

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  30.  
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    mdwstmusik (profile), Dec 28th, 2010 @ 12:14pm

    Re: Re: Yes, That's the issue...

    "...I do know that plenty of people play knockoff stats, while stores sit full of new real strats that aren't being sold. That says a bunch."

    No it doesn't. There are plenty of people playing cheap Les Paul/SG copies too. All it says is that some people can't afford 'Real' Strats or 'Real' Les Pauls.

     

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  31.  
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    average_joe (profile), Dec 28th, 2010 @ 12:45pm

    Re: Re: Re: Re: Re: Re: Re:

    The purpose of trademark law is to prevent consumer confusion. There is no indication that anyone here was confused.

    That's a doozy... and a faith-based oversimplification. You clearly are stating your opinion of how you think the law should be, but you are presenting it like it's a description of how the law actually is. You frequently blur this line, and I assume it's intentionally done. I often see those who don't have the law on their side use this trick.

    If we're going to talk of trademark's purpose, let's look to some authority:

    The purpose underlying any trade-mark statute is twofold. One is to protect the public so it may be confident that, in purchasing a product bearing a particular trade-mark which it favorably knows, it will get the product which it asks for and wants to get. Secondly, where the owner of a trade-mark has spent energy, time, and money in presenting to the public the product, he is protected in his investment from its misappropriation by pirates and cheats. This is the well-established rule of law protecting both the public and the trade-mark owner.
    S.Rep. No. 1333, 79th Cong., 2d Sess., 3 (1946).

    Sixty-four years later, those words are still true. And by protecting trademarks, Congress hoped:

    to protect the public from deceit, to foster fair competition, and to secure to the business community the advantages of reputation and good will by preventing their diversion from those who have created them to those who have not.
    Id., at 4.

    Care to back up your assertion that trademark law is only about confusion?

     

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  32.  
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    Marcus Carab (profile), Dec 28th, 2010 @ 1:05pm

    Re: Re: Re: Re: Re: Re: Re: Re:

    Failing to respect the wishes of an anonymous poster to remain anonymous is one of the great downfalls of TD, IMHO.

    Interesting. I've found that the addition of unique avatars for ACs has made the discussion here much more productive and easy to navigate, and has brought several of the ACs (even those staunchly on the other side of these issues) into the community in a more meaningful way - and has made the regulars more motivated to properly read and consider their arguments (because I won't deny - and I'm sure I'm not the only one - that I've brushed off opposing ideas too quickly on some occasions)

    I'm not entirely sure what you mean when you say it discourages dissenting opinions - howso?

     

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  33.  
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    Marcus Carab (profile), Dec 28th, 2010 @ 1:17pm

    Re: Re:

    You yourself recently went from vehemently supporting domain seizures to agreeing that they were unconstitutional, based on small but critical details that changed your reading of the law and resulted in a major shift of opinion. How can you now claim that the details aren't important?

    Nobody on Techdirt has ever called for "no more analysis" - in fact one of the overwhelmingly present themes on this blog seems to be a call for deeper and broader analysis.

     

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  34.  
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    Anonymous Coward, Dec 28th, 2010 @ 1:22pm

    Re: Re: Re: Re: Re: Re: Re:

    You claimed that the position of those of us on the site is "any and all attempts to preserve your position in the market are simply unwarranted."

    I made no such claim. You are adding words that simply are not there.

    The purpose of trademark law is to prevent consumer confusion. There is no indication that anyone here was confused.

    The issuance of a PI strongly suggests that some indicia are contained in the court record, some of which are referenced in the PI order.

    Grow up.

    I take solace in the fact that comments such as this tend to be directed at many who may disagree with what the principals here have to say about subjects such as this. Nevertheless, it is disrespectful.

     

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  35.  
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    Mike Masnick (profile), Dec 28th, 2010 @ 1:29pm

    Re: Re: Re: Re: Re: Re: Re: Re:

    I take solace in the fact that comments such as this tend to be directed at many who may disagree with what the principals here have to say about subjects such as this. Nevertheless, it is disrespectful.

    It was not directed at the disagreement. It was directed at your childish behavior of insulting us on the site, then pretending you did not, and then acting offended when I called you on it.

    I stand by it: grow up.

     

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  36.  
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    Mike Masnick (profile), Dec 28th, 2010 @ 1:32pm

    Re: Re: Re: Re: Re: Re: Re: Re:

    That's a doozy... and a faith-based oversimplification.

    I don't think you know what "faith-based" means.

    You clearly are stating your opinion of how you think the law should be, but you are presenting it like it's a description of how the law actually is.

    I am stating the basis of trademark law as originally designed. I will admit that certain trademark lawyers have expanded the meaning over time with things like dilution, but, yes, I believe that's a perversion of the point of trademark law above and beyond what is reasonable, and thus, an abuse of the law.

     

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  37.  
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    Anonymous Coward, Dec 28th, 2010 @ 1:45pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re:

    Let me suggest you take the time to read what was noted at 11 above. It nowhere states, implies, or suggests any of the things you are attributing to it.

     

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  38.  
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    average_joe (profile), Dec 28th, 2010 @ 2:02pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re:

    I don't think you know what "faith-based" means.

    Sure I do. It means that you see what you want to see despite all the evidence to the contrary that's right before your nose. Easy to spot from a distance. I see it in you quite frequently.

    I am stating the basis of trademark law as originally designed. I will admit that certain trademark lawyers have expanded the meaning over time with things like dilution, but, yes, I believe that's a perversion of the point of trademark law above and beyond what is reasonable, and thus, an abuse of the law.

    Regardless, you are NOT stating what the law actually is, even though you are PRETENDING to be doing exactly that. Your conscious decision to misrepresent the truth is noted.

     

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  39.  
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    average_joe (profile), Dec 28th, 2010 @ 2:05pm

    Re: Re: Re:

    When did I say details aren't important?

     

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  40.  
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    Marcus Carab (profile), Dec 28th, 2010 @ 2:11pm

    Re: Re: Re: Re:

    The techdirt logic seems to be if you can find one or two things that are arguably different than how the plaintiff or the court purports them to be, then the whole thing is suspect and no more analysis is needed.

    That sounds to me like an attempt to brush off the details by calling them "one or two things that are arguably different" - and since I completely reject the "no more analysis needed" part (seriously - when has TD ever called for less analysis?) it seems like you are saying that small details shouldn't matter if a broader case can be made against someone.

     

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  41.  
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    average_joe (profile), Dec 28th, 2010 @ 2:36pm

    Re: Re: Re: Re: Re:

    Just in this article, Mike said: "The lawsuit claimed that Wowwee's own websites acknowledged that the styling was modeled after Gibson's guitars, but apparently, at least some of those websites may not have actually been Wowwee's at all, but third parties, who were simply pushing people to Amazon affiliates or other sites. If that's the case, it calls into question certain aspects of the rest of Gibson's case as well."

    He indicates that since there APPEARS to be a mistake, the rest of Gibson's case is suspect. There is no analysis of the rest of Gibson's case, just the faith-based insinuation of FUD. On top of that, he indicates that trademark law is in fact ONLY about confusion. This too is faith-based since it ignores the simple reality that trademark law is IN FACT about much more. It's not based in reality or logic, so it's faith-based. Simple.

     

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  42.  
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    Mike Masnick (profile), Dec 28th, 2010 @ 2:36pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    Let me suggest you take the time to read what was noted at 11 above. It nowhere states, implies, or suggests any of the things you are attributing to it.

    I see. Based on that theory, then my statement to you was also NOT a "thinly veiled personal insult." Please reread my statement. It nowhere states, implies, or suggests any of the things you are attributing to it.

     

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  43.  
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    Mike Masnick (profile), Dec 28th, 2010 @ 2:38pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    Sure I do. It means that you see what you want to see despite all the evidence to the contrary that's right before your nose. Easy to spot from a distance. I see it in you quite frequently.

    That's not what faith-based means.

    Faith-based means you assume something must be true, despite a lack of evidence.

    Regardless, you are NOT stating what the law actually is, even though you are PRETENDING to be doing exactly that. Your conscious decision to misrepresent the truth is noted.

    Similarly, your desire to misrepresent my position is noted.

     

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  44.  
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    Actual Trademark Lawyer (profile), Dec 28th, 2010 @ 2:54pm

    Actual Trademark Law

    Ladies, for what it's worth, you're both pretty much correct in describing the purposes of trademark law. It is absolutely correct to state that the fundamental purpose of trademark law is to prevent marketplace confusion. Without proving a "likelihood of confusion" there can be no trademark infringement. That's just black letter law.

    On the other hand, the federal trademark statute, the Lanham Act (from which the prior poster quoted some legislative history), has been amended to protect trade rights that are not traditionally trademark rights. The best example is the anti-dilution provisions that were added several years ago which allow the owners of "famous" marks to prevent activity that might dilute the distinctiveness of their marks. It is not necessary to prove a likelihood of confusion in a dilution case, but only "famous" marks are entitled to anti-dilution protection.

    With regard to the Gibson/Wow Wee case, I've actually read some of the pleadings (they are available through the PACER system, which anyone who cares to create an account and pay 4 cents per page may access). Gibson's lawyer's were definitely kind of sloppy and seem to have attributed to Wow Wee a number of web sites that did not belong to Wow Wee. There is nothing in the papers I read to indicate that Wow Wee had ever used either the Gibson name or the names of any of Gibson's guitars. The claims seem to be exclusively that Wow Wee used SHAPES (guitar shapes, headstock shapes, and a truss cover shape) that Gibson claims as its trademarks. It's helpful that Gibson actually has federal trademark registrations for these shapes. WowWee's defense is that, even though Gibson has the registrations, the shapes cannot function as trademarks because they are either generic or functional.

    I have no idea which side is right from a factual standpoint, but for whatever reason the court, by granting the preliminary injunction, impliedly and necessarily found that Gibson was likely to succeed in proving, at trial, that there was a "likelihood of confusion" among consumers when Wow Wee used the Gibson shapes on its toy guitars. There were no claims of dilution raised in the suit, so the "likelihood of confusion" standard is the only relevant standard for this case.

     

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  45.  
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    Super Sponge, Dec 28th, 2010 @ 10:38pm

    Re: Game Designers & Licensing Cars

    Game designers do not have to license anything unless they plan to use real names, such as the model and manufacturer. Nothing has prevented the creators of some racing games (noticeably the ones that involve major destruction) from creating 3D models for use in their game which exactly match their real world counterparts in both looks and performance, and to which completely made up names have been applied.

    Unless Wowwee is trying to pass off their cheap paper guitars as being real Gibson's or using the Gibson name in any way, I don't see how there is a winnable case here. Any similarities in how they look can be attributed to chance, a general idea of how guitars look in the public mind. Ask some random guy on the street to draw a guitar and odds are their drawing will look like something Gibson has made at one time or another.

    Besides, what kind of idiot would mistake a flat piece of $12.99 paper junk for the real thing when nowhere does it say that it actually is a Gibson? Sorry, nobody is that stupid (several commenters here notwithstanding).

     

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    abc gum, Dec 29th, 2010 @ 5:40am

    Re: Re: Re:

    "It is very similar to the methods used by televangelists and Fox News commentators."

    lol - wat?

     

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    abc gum, Dec 29th, 2010 @ 5:46am

    Re: Yes, That's the issue...

    "You own your designs, and copying them, even in models, is a violation of your design"

    Oh, look - its a vehicle and has four wheels. Our vehicle has four wheels - call the lawyers.

     

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  48.  
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    Marcus Carab (profile), Dec 29th, 2010 @ 6:25am

    Re: Re: Re: Re: Re: Re:

    Saying that something is "suspect" or saying it is "called into question" is a call for more analysis, joe. Just because every post doesn't break down every case from start to finish doesn't make it wrong to say "X doesn't make sense so I now have some doubts about Y"

    You are really harping on this "faith-based" thing eh? I get that it's your new favourite buzzword, but I don't think it means what you think. Opinion and faith are two different things.

    You seem to be under the impression that any viewpoint that isn't yours is "faith-based" - which is fine I guess, but then you'll have to acknowledge that your own opinions are "faith-based" too.

     

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  49.  
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    average_joe (profile), Dec 29th, 2010 @ 7:15am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    hat's not what faith-based means.

    Faith-based means you assume something must be true, despite a lack of evidence.


    Isn't that the equivalent to what I said?

    "see what you want to see" = "assume something must be true"

    "despite all the evidence to the contrary that's right before your nose" = "despite a lack of evidence"

    And Mike, you're not fooling anyone by claiming that trademark law is only about confusion. Perhaps that used to be true, but it is disingenuous to pretend that that is now the case. You clearly are presenting trademark law as it used to be and/or how you think it should be. You are not presenting it as it actually is. You are consciously blurring the line between the two. That's called being a liar.

     

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    average_joe (profile), Dec 29th, 2010 @ 7:19am

    Re: Actual Trademark Law

    Thank you, counselor. I don't deny that perhaps trademark law used to be only about confusion. I'm simply pointing out that Mike is not telling the truth when he says that trademark law is now only about confusion. Clearly that's not the case. His intentional misrepresentation, I suppose, is for the purpose of deceit and manipulation. Why else would he disregard and misstate the truth?

     

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  51.  
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    abc gum, Dec 29th, 2010 @ 8:19am

    Re: Re: Actual Trademark Law

    Perhaps there are those who view recent amendments to the Lanham Act as inappropriate or even in error. As everyone knows, the letter of the law does not necessarily represent the spirit of the law. One could ask Mike about this, but it is more fun to poke him with a stick, no?

     

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    Anonymous Coward, Dec 29th, 2010 @ 10:11am

    Re: Indeed...

    it's funny. My son recieved one of these types of guitars for christmas (I don't know if it was a gibson look-alike or not, but it was branded with the AC-DC logo). It has been by far, the best gift he has ever recieved. It's running a close second in his mind to the Kinnect they got as well. Seeing the joy on his face as he rocks out to one of three AC-DC songs is awesome. Who knows if this makes him want to learn a guitar for real or not, but, for $15 I'm not going to argue. That being said, I wouldn't be able to recognize a gibson from a snake...But put me in front of computer parts...

     

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    Mosiac User, Dec 29th, 2010 @ 11:05am

    PaperJamz

    I watched the price drop on these guitars and finally looked them over when they hit halve of the original price. They are prominently branded PaperJamz,and certainly not convincely duplicates of,or likely to be confused with standard guitars from Gibson. In fact, PaperJamz is only the market leader in this faux guitar area. there are a number of companies who make electronic toy guitars. I suspect Gibson will not prevail. To whomever said the Purchase Orders for these toys will protect the companies from losses,that is unlikely. For the public,there is probably a stock trade opportunity for those following the story. If Gibson wants to make a token stab at this,God speed. However,being a musician and owner of a few guitars myself,I believe the true point is being missed. With GuitarHero controllers,Wii controllers and PaperJamz, many kids may elect to seek out Pro models of this type of instrument as they age. Laugh if you want,but with modern electronics, a stringed instrument is just a controller of a different fashion. Obviously acoustic guitars are not in this catagory, but Gibson may be better served to look forward to innovation in this new style of guitar market.

     

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    Actual Trademark Lawyer (profile), Dec 29th, 2010 @ 12:57pm

    Re: PaperJamz

    Good observations Mosaic User. My only comment is that the retailers probably will indeed be insulated from any liability either by the terms of their purchase orders (i.e., contract law) or by the reality that Wow Wee will need to cover their customers' legal fees and expenses if they ever want to do business with them again. From a legal perspective, Wow Wee would also probably WANT to agree to indemnify and defend the retailers so as to have control over a unified defense.

     

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    Anonymous Coward, Dec 30th, 2010 @ 12:47pm

    Re: Re: Re:

    >Gibson has the right to choose how they are represented in the marketplace

    No they don't. They have some abstract moral 'right' to that, but they have absolutely NO legal right to manage our thoughts and opinions through the force of government. Trademark exists to prevent consumer CONFUSION, not to be exploited as a patent on look and feel

    What you're wrongly claiming is part of the alarming trend of trademark expansionism

     

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  56.  
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    "m", Dec 31st, 2010 @ 9:39am

    If I were "Wowwee" I'd be going "Thank you Gibson!!...we know have a chance of being more than a one-time wonder and building a company of Apple-like dimensions"

    ...looking at things thru the rear view mirror, I'd say that Wowwee may have banked on this very thing...taking the risk that Gibson would sue based on their past behavior. But it's a risk you're willing to take to make your product more identifiable and desirable. You use them to build an initial sales base (and succeeding beyond your wildest dreams).

    As you suspect you get sued. Your first products potentially become collector items. Your public profile and cachet soars even higher. But now you're no longer Gibson-design dependent; you do your their designs and they sell because of the Paper Jamz brand. And you are in the position to get real rock star guitarists to sign on and do limited edition designs for you.

     

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