Gibson Guitar Formalizes Its Hands-Off IP Enforcement Approach With Authorized Partnership Program

from the not-bad,-not-great dept

As I mentioned when we recently discussed Dean Guitars' pushback and counter-suit against Gibson Guitar's trademark lawsuit, Gibson CEO James Curleigh's vague declaration of a relaxed position on IP enforcement has calcified into something of an official corporate program. It's not all bad, but it's not all good either.

We'll start with the good. Gibson has decided to recognize that there are fans inspired by its designs who want to create their own guitars and even sell them on occasion. In recognition of this, Gibson is starting an "authorized partnership" program to allow those creators to build guitars without fear of legal threat.

The initial stages of the Program will see Gibson grant several boutique builders permission to create guitars based on the body shapes that it claims to own. The agreement involves specific terms set by Gibson, reports NewsChannel 5: chief among them that the boutique brands must acknowledge these shapes do indeed belong to Gibson.

“We’ve entered into some agreements with three or four boutique guitar companies, and basically, they actually love Gibson, and we actually love them,” Curleigh said in the interview. “We just have to have a conversation around where the lines are between shapes and names, etc. And what’s amazing is, as soon as we enter into those conversations, it leads to a collaborative, creative conversation. So it’s going to work basically, it’s essentially an agreement where they acknowledge: ‘Yup, these are your shapes,’ and we say, ‘you can use them.'”

While it's a step forward for Gibson to enable these companies to create and build off of the inspiration from Gibson, you can already see hints of that old protectionist attitude creeping back in. In order to enter into this sort of agreement, first these companies must bow at the alter of Gibson by acknowledging that it holds trademarks on many of its designs. While that may be something approaching SOP for these types of partnership or licensing agreements, the current legal battle with Dean Guitars puts this very much in question. Whether Gibson does in fact hold valid trademarks on its most treasured guitar designs is subject to the outcome of Dean's counter-suit, in which Dean attempts to invalidate many of those trademarks entirely.

Regardless, putting so much emphasis on the acknowledgement that Gibson has these valid trademarks feels like the vestigial remains of the company's old protectionist policies. And, while Curleigh insists that he isn't trying to build this as a revenue stream for Gibson, the agreements do also allow the company to control how many of these 3rd party guitars get sold and to demand royalty fees, so there's that.

Add to all of that that Curleigh isn't exactly giving up litigation as an option, too, and one wonders just how much a shift in company culture this is all going to be.

“My last resort, I can tell you as a leader, is always going to be legal. But if a company or a brand leaves us, or me, with no choice, I have to follow that direction,” the CEO continued. “I don’t want to, but part of our brand and our business is intellectual property, and kind of half of the value of some companies are in that. We have to preserve and protect [our trademarks], but I think we can do it in a way that’s not confrontational, it’s more collaborative.”

These types of subtle changes can indeed have outsized effects, but it's all in the follow through. Again, this is for sure a step in a positive direction for Gibson, which has traditionally been very protective of its perceived IP. What remains to be seen is if this is really the cultural change Curleigh promised.

Filed Under: guitars, ip enforcement, james curleigh, trademark
Companies: gibson, gibson guitar


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  • icon
    DB (profile), 19 Jul 2019 @ 7:52pm

    From the ongoing lawsuit we've seen that they likely don't have an enforceable claim on the guitar shape. This seems like an attempt to get makers to agree to a license fee that would be enforceable even if the court decides that Gibson has no otherwise enforceable rights.

    reply to this | link to this | view in chronology ]

  • icon
    sumgai (profile), 20 Jul 2019 @ 6:49am

    Here we go again.

    reply to this | link to this | view in chronology ]

  • icon
    sumgai (profile), 20 Jul 2019 @ 7:18am

    Here we go again.

    As someone who started playing guitar professionally in the early 60s, I might be said to have some awareness of what's what. But I do need to disclose that I'm not a Gibson-hater, I simply don't inhale the smoke-and-mirrors that characterizes their hype-vs-benefit ratio, that's all.

    But in Techdirt terms (covering stupid laws and even stupider lawsuits), I'll say only that Fender lost a lawsuit about 10 years ago wherein they tried, 55+ years on, to trademark the shape of their headstocks. Operative word being "tried". Face-palms all around.

    Ditto for Gibson, about 10 years ago as well. PRS won a landmark case (in the Sixth Circuit, review refused by the Supremes) that effectively told Gibson to go fly a kite - PRS was indeed authorized to build a guitar that looked somewhat like a Gibson Les Paul, simply because that shape had been copied by so many other companies for so long that it didn't make any commercial sense to enjoin just one company from that action. (Between the lines: If Gibson had sued every nominally "big" guitar maker at the same time for the same copying action, presumably they may have made a stronger case. But we'll never know, will we.)

    At bar, we now see Dean Guitars, who've been making various Gibson-inspired models since at least the 80s, only now getting the C&D treatment in full force. I predict tears for Gibson, unless the IP laws (and flawed lawsuits) have changed the legal landscape drastically in the last decade.

    Again, I personally have nothing against Gibson, I hope they continue to make guitars. They are a legend in the industry, I recognize that, and I would prefer to not see legends go down in flames because of stupidity like this.

    Which points out another "interesting" factoid: asinine lawsuits like this are what we get when we let approximately 30,000 lawyer-wannabe's take the bar exam each year. (Albeit, that's down from a peak of 52,000+ in 2010.)

    sumgai

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    • identicon
      Anonymous Coward, 20 Jul 2019 @ 10:57am

      Re: Here we go again.

      Why would anyone not expect Gibson to protect its valuable parts of its business? If they don't reel in some of their designs or all of them and continue to let copiers to produce knockoffs, they will lose those pieces that have made Gibson the standard in guitars.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 20 Jul 2019 @ 7:28pm

        Re: Re: Here we go again.

        Because you suddenly can't claim a trademark design infringement singling out one player after not doing so since forever, against any other maker. They should have been "protecting" their designs all along if that is the case. The difference between the recent period and forever prior is a surge in IP lawyers looking to make money or just appear to be doing something.

        Aside from that, the Les Paul, despite having an all-star design team, essentially has the same basic body plan as most all prior acoustic guitars, and a rather vast number of western stringed instruments. I get that it has some unique characteristics, but they are pretty much generic at this point.

        Besides, I thought quality workmanship and gear (theirs or sourced) is what made Gibson a standard.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 20 Jul 2019 @ 7:31pm

          Re: Re: Re: Here we go again.

          Er, yeah, or they used to do. From what i hear from some musicians, they are basically trading on what remains of their name, and the works of the original founders and team these days.

          reply to this | link to this | view in chronology ]

      • icon
        Narcissus (profile), 22 Jul 2019 @ 7:16am

        Re: Re: Here we go again.

        "Why would anyone not expect Gibson to protect its valuable parts of its business?"

        So what is the valuable part of their business? Is it that they have unique guitar shapes or is it that they make great guitars that sound great and play well? I'm not a musician myself but I would say that to them the sound is more important than what it looks like.

        Many instrument makers can command a (huge) premium because they sell quality instruments that sound consistently great and because they have great brand recognition because of that, even if their shape is pretty similar to the competition. Steinway comes to mind.

        So, should Gibson focus on the valuable part of their business or should they focus on stupid IP laws?

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 22 Jul 2019 @ 8:18am

          Re: Re: Re: Here we go again.

          They (Gibson) got tired of companies who were not creative enough to design their own instruments, but who instead stole designs and mass produced knockoffs. Now they are attempting to bring those well established knockoff companies to the table in an honest effort to protect what is their designs.

          reply to this | link to this | view in chronology ]

          • icon
            DB (profile), 22 Jul 2019 @ 10:19am

            Re: Re: Re: Re: Here we go again.

            The defense filings show that some of these designs have been produced by others for about a half century.

            If they thought that they had "IP Rights" in the design, they should have asserted them long ago. A court would have ruled on the issue. The validity and bounds of their rights would have been known.

            Of course back then they would likely have been laughed out of the courtroom.

            reply to this | link to this | view in chronology ]

  • identicon
    bobob, 20 Jul 2019 @ 10:20am

    The first Les Pauls were sold 69 years ago. The first Flying Bs and Explorers were sold 61 years ago. The first SGs were sold 59 years ago. Exactly what IP could be attached to those body shapes even a quarter century ago? Furthermore, the body shape that is by far the most prevalent is the superstrat, based on the Fender stratocaster, which Fender doesn't seem to think they can extort money from.

    All Gibson is doing is trying to grab a life preserver to keep itself from drowing in bankruptcy for lack of doing anything significant in the last 50 years, while continuing to sell products at exhorbitant prices that are lower in quality than even the Chinese knockoffs.

    Gibson is ike the cult of mac, but without any of the innovation that at least makes the cult of mac seem more plausible than just a fanboi thing. I say this as someone who bought a flying V in 1976 which now has the infamous broken headstock problem from poor design and I am having restored for purely investment reasons. (Check the prices for 1976 Flying Vs on ebay and weep.)
    It's worth more broken than $500.00 guitars that will blow it away even with the best restoration. Unfortunately for gibson, people younger than 40 weren't born when gibson and fender were the only games in town and have more and better guitars from which to choose. Selling new guitars when the only real market is collectors of their really old guitars is tough business.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 20 Jul 2019 @ 11:11am

      Re:

      The wood they are milling for those necks are not as tight grained as the older first growth trees are becoming scarce and also particulates in the atmosphere are making hardwoods weaker. Its time to explore some synthetic designs to restore neck and headstock strength while ensuring longevity.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 20 Jul 2019 @ 1:48pm

        Re: Re:

        It's a design flaw and has nothing to do with the wood being used. Gibson necks and headstocks are built from a single piece of wood (which is also a waste of wood) and the headstock angle creates a weak point where the headstock angles back because it's very thin. You can do a search for gibson headstock break for lots of details.

        There is actually no reason for this problem to occur because a hedstock is completely unnecessary. I also owon a steinberger, which has a composite neck and no headstock at all which has micrometer tuners at the bridge. That is actual innovation and you can find a video on youtube of ned steinberger standing on a bass guitar neck suspended between two chairs.

        Oddly enough, gibson purchased steinberger, but did nothing with it, so apparently, not only does gibson think it's necessary to try enforce dubious ip on something as silly as half century old body shapes, but they are unable to capitlize on designs that were actually patented and they had the rights to. Gibson deserves to be bankrupt. Their ceo seems to think innovation is a self tuning guitar, which is basically a horrible kludge of unnecessary, counterproductive and additional points of failure when using live. The entire business of ip has become nothing more than a means of stifiling innovation rather than promoting it.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 20 Jul 2019 @ 5:26pm

          Re: Re: Re:

          It would be neccessary to know the tuning of each guitar if above design tension or a440 tuning and condition leading to breakage to rule out wood absolutely.

          reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 22 Jul 2019 @ 10:52am

      Re:

      Trademarks don't expire if they're actively used, and why should they? Guitar shape just shouldn't be protectable, being mostly derived from acoustics and ergonomics.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 14 Aug 2019 @ 5:24pm

        Re: Re:

        I think the subtle differences in the shapes of guitars should be protectable or everything will just blend in together and hide the differences in quality of materials and craftsmenship from company to company.

        reply to this | link to this | view in chronology ]


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