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: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.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: contributory infringement, guitars, liability, paper jamz, trademark
Companies: ebay, gibson, wowwee
Reader Comments
Subscribe: RSS
View by: Time | Thread
Someday people will look back and find that playing a string instrument was barbaric :)
[ link to this | view in chronology ]
[ link to this | view in chronology ]
What, me? A moron?
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.
[ link to this | view in chronology ]
Re: What, me? A moron?
[ link to this | view in chronology ]
Re: What, me? A moron?
[ link to this | view in chronology ]
Re: What, me? A moron?
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.
[ link to this | view in chronology ]
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?
[ link to this | view in chronology ]
Re: What, me? A moron?
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.
[ link to this | view in chronology ]
Re: What, me? A moron?
this is a _toy_
how does the moron in a hurry test work?
[ link to this | view in chronology ]
I wish I ran a consumer products company...
[ link to this | view in chronology ]
Sure are a lot of "notoriously litigious" corporations.
"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.
[ link to this | view in chronology ]
Re: Sure are a lot of "notoriously litigious" corporations.
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.
[ link to this | view in chronology ]
Re: Sure are a lot of "notoriously litigious" corporations.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
way less than a second
Gibson flying V guitar..
Sorry, but I side with Gibson here as well, anyone who knows their guitars will see that for what it is instantly..
And that is NOT some paper guitar,
Go Gibson,, go AC/DC,,, Get em angus
[ link to this | view in chronology ]
Gibson's lawyers are idiots
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?
[ link to this | view in chronology ]
Re: Gibson's lawyers are idiots
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.
[ link to this | view in chronology ]
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.
[ link to this | view in chronology ]
They will have to pay millions to get permission to use cars, planes, tanks, weapons and anything else.
Maybe that is why nobody produces toys in the U.S. anymore is just to expensive to do so.
[ link to this | view in chronology ]
Gotta side with Gibson here big time
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.
[ link to this | view in chronology ]
Its an ICON much more than a trademark..
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..
[ link to this | view in chronology ]
Re: Its an ICON much more than a trademark..
[ link to this | view in chronology ]
That Ship Has Sailed and this Dog Won't Hunt
[ link to this | view in chronology ]
Uh.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
good for gibson
[ link to this | view in chronology ]
[ link to this | view in chronology ]