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.
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Filed Under: guitars, injunction, paperjamz, trademark
Companies: gibson, wowwee
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Desperate and whiny, that seems to be the TD trend this month.
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How hard is that to understand?
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Again, how hard is any of this to understand? I mean, even guys like RD can catch this.
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And a Merry FUCK YOU to you too asshole.
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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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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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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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Right or wrong in your opinion, the case is valid.
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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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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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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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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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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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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:
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:
Id., at 4.
Care to back up your assertion that trademark law is only about confusion?
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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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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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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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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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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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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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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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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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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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Re: Gibson needs to sell this shit themselves
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Also, I'm with TD. There is no damage being done to Gibson.
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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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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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lol - wat?
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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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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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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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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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Indeed...
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Re: Indeed...
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Not that in any of these 2 cases there's possibility of introducing any "harms", though...
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Yes, That's the issue...
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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Re: Yes, That's the issue...
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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And they sell plenty of Strats at all price points from $100 to Over 10,000
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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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Re: Yes, That's the issue...
Oh, look - its a vehicle and has four wheels. Our vehicle has four wheels - call the lawyers.
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Re: Game Designers & Licensing Cars
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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Not unexpected
Some things never change.
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This is so dangerous
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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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Actual Trademark 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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Re: Actual Trademark Law
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Re: Re: Actual Trademark Law
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PaperJamz
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Re: PaperJamz
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...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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