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.

Filed Under: contributory infringement, guitars, liability, paper jamz, trademark
Companies: ebay, gibson, wowwee