Gibson Sues Everyone Over Paper Jamz Paper Guitars, Specifically Goes After eBay

from the that's-not-going-to-work dept

Eric Goldman points us to the news that the (notoriously litigious) Gibson guitar company is suing a whole bunch of companies for selling the new “Paper Jamz” paper multi-touch guitars. If you haven’t seen these things, they’re basically a “paper” (really plastic) guitar with a capacitive multi-touch surface that plays music in response to your touch. Here’s a video demonstrating the thing in action:

It actually seems like a pretty cool toy for anyone who wanted to create a more realistic air guitar… So, what’s the problem? Well, it seems like most of the models Paper Jamz is offering look very much like Gibson trademarked guitar models, and the Paper Jamz folks (made by Wowwee) didn’t bother to get a license. Wowwee doesn’t even bother trying to hide it. In its marketing, it refers directly to the Gibson models each Paper Jamz design is set to look like. It’s so blatant, it almost makes you wonder if Wowwee figured they’d get sued to help their marketing.

That said, even if it’s totally blatant, I’m wondering if there’s any actual “harm” here, despite Gibson’s claims. It’s not as if using one of these is going to make people say they don’t want a real Gibson guitar. If anything, I could see these increasing the demand for the real versions of the various Paper Jamz models. Hell, I could see a market for Gibson to come out with similar designs just to capitalize on the popularity of the Paper Jamz guitars.

The flipside, of course, is that Gibson wants to “license” the trademarked designs, and is actually hoping to get Wowwee to pay up for the designs and then still get the benefit of increased demand for the real guitars. That feels a bit like double dipping, but you can understand where Gibson is coming from on that.

Where it gets a little shadier is going after the various retails selling the Paper Jamz offerings — as the lawsuit is filed against Walmart, Amazon, Big Lots, K-Mart, Target, Toys R Us, Walgreens, Brookstone, Best Buy, eBay, Toywiz and HSN (Macy’s was also threatened, but claims it doesn’t sell the toy, so Gibson didn’t sue). It gets especially questionable when it comes to eBay, where (obviously) some users have been selling the toy. Gibson claims that eBay is guilty of contributory infringement, because it did not respond to a cease & desist letter it sent and (Gibson claims) even under the recent Tiffany ruling, which absolved eBay of such liability, part of what worked in eBay’s favor was its takedown policy. Gibson here is arguing that since eBay didn’t take stuff down when it contacted them, that policy was ignored, and the Tiffany ruling no longer applies. That seems like a stretch, though there are some details lacking, such as exactly how Gibson informed eBay of the “infringing” material. A blanket cease & desist might not include enough information. Either way, it seems pretty silly to go after eBay here — because the company has shown a willingness to fight (and win) over lawsuits like this.

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Companies: ebay, gibson, wowwee

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Comments on “Gibson Sues Everyone Over Paper Jamz Paper Guitars, Specifically Goes After eBay”

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Eugene (profile) says:

I don’t understand why EBay, or even the other retailers, can be liable *before* the case with Paper Jamz even goes to trial. What if they’re found to be innocent?? I mean they probably aren’t but it’s still possible. Aren’t there antitrust laws that prevent companies from forcing retailers to remove competitors’ – or alleged competitors’ – products from the shelves?

Danny (profile) says:

What, me? A moron?

I am with Gibson on this one. This moron in a hurry would assume that Gibson guitars is somehow associated with the paper product.

Therefore the quality (and customer service and all) of the paper guitar company’s product and delivery could well impact Gibson’s reputation. I don’t think Gibson is either over-reaching or double-dipping.

Steven (profile) says:

Re: What, me? A moron?

I don’t think so for a number of reasons.

First I think it’s a stretch to put these two in the same market. Trademarks are only valid for items in the specific market for the products (I could open a company called Google that sold furniture and should prevail on any lawsuit).

If you buy (or even look at) one of these guitars it does not say anywhere that it is a Gibson product. It has a passing resemblance to the Gibson designed guitars, but that is all.

A possible assumed association is not nearly the same as actually infringing on the trademark.

David (profile) says:

Re: Re: What, me? A moron?


Assuming Gibson’s trademark didn’t cover the market for Paper Jamz’s stuff, I think there’d still be potential claims for dilution by blurring or tarnishment, right?

Or even for just a claim under 43(a), wouldn’t the separateness of the markets only speak towards one of the “likelihood of confusion” factors (proximity of the markets), rather than shutting down the lawsuit entirely?

David (profile) says:

Re: What, me? A moron?

I tend to agree with Danny. A product is being put out that looks very much like Gibson’s, but without them doing quality control, etc. Beyond that, though, I definitely treat unjust enrichment as a type of harm; if Paper Jamz makes more money because they have Gibson’s look, they’re cashing in on another company’s recognition and goodwill.

And I’m a little confused by the suggestion that Gibson is “double-dipping,” to be honest. If DC licenses the Superman symbol for t-shirts or coloring books or whatever else, they’re getting the licensing fees and also indirect benefits from those customers now wanting to read the books and buy the DVDs, etc. It hadn’t occurred to me that this might be controversial or regrettable, it just seems natural to me. In the original post you implied you understood where Gibson is coming, so I don’t mean to suggest that you’re villifying them for this—but it does seem to bother you a bit, I guess I’m just not sure what about it makes you uneasy.

On the ebay issue, I could imagine it going either way—like the post says, there are definitely details missing that could swing it. If Gibson followed the model from the Tiffany case, pointing out particular infringing goods that ebay wouldn’t take down, they might have a case. But yeah, a blanket statement saying “there are infringing goods, please take them down” really wouldn’t seem to justify that part of the suit. Until we know more it’s really hard to weigh in on likelihoods, or to know if Gibson is being silly by naming ebay as a defendant.

Plus, there’s the distinction that Tiffany was dealing with straight-up counterfeits, whereas even if Gibson is right, Paper Jamz is selling a different-kind-of-infringing good. I could see that as a complication for Gibson, because just like the Tiffany case held that ebay didn’t have to hunt for infringements, I don’t know to what degree the courts would require ebay to make judgment calls about which goods likely infringe and which don’t, especially if there’s a reasonable argument for it not infringing.

Anyway, interesting case.

out_of_the_blue says:

Sure are a lot of "notoriously litigious" corporations.

And yet you still maintain it’s a bad strategy.

“Wowwee doesn’t even bother trying to hide it. In its marketing, it refers directly to the Gibson models each Paper Jamz design is set to look like.”

That’s a near complete exoneration in my view: stating what you’ve copied from is FAIR USE — I suppose quibblers will object this isn’t copyright: *same principle*, and here it’s not copying, it’s a TOY in imitation — they’re not trying to hide the source, let alone to trick anyone that it’s an actual guitar, any more than model car makers are pretending to sell cars.

David (profile) says:

Re: Sure are a lot of "notoriously litigious" corporations.

Well, trademark does also have “fair use”-style doctrines so it’s not a silly notion to raise. In the trademark context, it’s true that you can use a company’s mark in a description; so Gibson couldn’t sue Paper Jamz FOR referencing Gibson in describing of what their paper guitars are modeled after. So trademark’s version of fair use can protect stuff like “Inspired by Tylenol’s Trademark” or “Designed to be Compatible with the iPhone.” But that aspect of trademark fair use only protects for the mention of other company’s mark, not for actual use of the mark.

I’m not having immediate luck finding Paper Jamz’ promotional materials, but one page seems to have it second-hand: “Paper Jamz Guitar – Series 2 Style 1 is styled after the famous Gibson Les Paul.” Reasonable minds can interpret it differently, but to me, that’s not actually a disclaimer by Paper Jamz that the guitars aren’t endorsed by Gibson. If the paper guitars were licensed, they might still refer to being “styled after” the Gibson model that’d been licensed. A disclaimer isn’t a 100% exoneration anyway, but in this case I don’t think there is one in the first place.

On the comparison with toy cars…I can’t run a heavy duty search at the moment, but I feel like I can half-remember learning about a toy car case, actually. Does anyone remember something more specific, a case where toy cars imitated famous models without licenses? If someone’s got a case like that, it would speak to the issue of separate markets that Steven brought up.

Ray says:

Gibson's lawyers are idiots

You’ve activated my long-dormant Gibson hatred. Trademarking guitar bodies shouldn’t be allowed, and in fact, Fender wasn’t allowed to do it recently. Gibson got lucky with that.

I read through most of the suit and went to the websites they reference. Only one is actually owned by the company that makes Paper Jamz.

“Wowwee doesn’t even bother trying to hide it. In its marketing, it refers directly to the Gibson models each Paper Jamz design is set to look like.”

That’s not Wowwee’s marketing. That’s the “marketing” from a site pretending to be an official Paper Jamz site, hoping to drive traffic there to buy the guitars through their Amazon affiliate links. If I could figure that out in less than 30 minutes, why couldn’t Gibson’s lawyers?

Anonymous Coward says:

Re: Gibson's lawyers are idiots

The body can’t be trademarked but the design can be copyrighted. But the operative term for this discussion is “trade dress”, essentially the look and feel including packaging, presentation and overall design.

Lots of close copying of bodies, but copy a Gibson or Fender headstock design, which Paperjamz did in the Flying Vee, and you will hear from the lawyers. Fail to immediately cease and desist and they will file suit. Guaranteed they were warned. Ignoring the warning was a big mistake.

harbingerofdoom (profile) says:

well, in looking at their products listed on their site i see:
a fender strat
a gibson SG
a gibson flying v
a gibson les paul
a gibson destroyer
a fender telecaster.

that was just 10 seconds of looking at their products without looking at any other reference. they are clearly identifiable as the guitars they are modeled after which leads me to believe that gibson does actually have a valid beef here.
but the beef they have is with paperjamz, not the retailers they are including.

Rhynn (profile) says:

Gotta side with Gibson here big time

As a lifetime guitar player, I recognized the design in the video still immediately. The listing of products in one of the other posts names off some very iconic instrument series and when it comes down to it, this product will probably be considered a musical instrument. I don’t know if that would be enough to call it a direct copyright infringement, but I can certainly understand why Gibson would be put out.

As far as the retailers are concerned, if they were stocking pirated copies of software or other goods where copyright was up in the air, they would be cracked down on for doing so, along with the manufacturers themselves. I don’t see where the case can’t be made on the same grounds as what was used against torrent sites, except that this case is worse because the facilitators are making money.

darryl says:

Its an ICON much more than a trademark..

some things simply progress far beyond simply copyright, or trademark, some things achieve the level of ICON..

And that is what Gibson guitars are, just like Fender guitars are, there is pretty much Fenders, and Gibsons and then ‘all the rest’.

(execpt mabey the Australian Maton is an icon as well).

So Gibson has every right to protect their creations, creations that are from more than simply a musical instrument, clearly it is a culture, and an expression of art.

Gibsons guitars are what they are because they are Gibsons, not because they are the same shape as a Gibson.. and the company has every right, and is in the right to defend that ICON they have developed.

Its another example of someone trying to cash in on the quality, and product name built up by many years of hard work, and the production of a high quality product..

It is not right for someone to devalue a Gibson Flying V guitar, to the level of a paper plane or a toy..

GibsonGuy says:

That Ship Has Sailed and this Dog Won't Hunt

Gibson has already had its Day(S) in court re: trademark infringemnt…AND LOST each time ! This is just Henry Juszkiewicz beating a dead horse because he has run the business into the ground and is about to get wiped out ! A smart, non-control freak CEO would look for an opportunity to turn this around into a marketing plus rather than spend money the Comapny doesn’t have on frivolous, un-winable litigation ! Retire Henry and let quality come back into the Gibson Brand name once again !

Anonymous Coward says:

I want to get one for my daughter, who does not know how to play a real guitar. We are not musically inclined, and would not know a “Gibson” if we saw it. I know there are legal and copyright issues in play here, but for the average consumer, my thoughts are that people just want to buy it because they are a really cool toy. We are in no way drawn to it because it looks like a Gibson. If anything, it will encourage my daughter to want to learn to play a real guitar later on in life and go on to buy a Gibson. However, after the ridiculous “notoriously litigious” Gibson is being called, I think as a consumer, I would look elsewhere for another brand of guitar for her should she want to pursue the trade.

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