Gibson loses Flying V trademark case in EU court
Gibson may currently be taking legal action to protect its Flying V body shape in the US, but the company has lost the rights to trademark the shape in a judgement handed down by the Second Chamber of the EU General Court, which declared that, “there has been no demonstration of distinctive character acquired,” by the Flying V and, “that when the application for registration of the challenged mark was filed, the V-shape did not depart significantly from the norms and customs of the sector.”
The case dates back all the way to 16 June 2010, when Gibson filed a patent application for the Flying V with the European Union Intellectual Property Office (EUIPO), which was initially granted. However in October 2014 Hans-Peter Wilfer, the owner of Warwick and Framus, challenged the registration of the mark in respect to musical instruments.
In 2016, this case was heard by the EUIPO’s Cancellation Division, and Wilfer’s complaint was upheld, cancelling the mark and declaring that, “the applicant had failed to establish the distinctive character acquired by that mark in the European Union.”
Gibson appealed and lost in 2018, and then took its appeal to the EU General Court, where a panel of three judges dismissed Gibson’s second appeal, issuing a robust explanation of their findings.
In the judgement, the court declared that while the shape of the Flying V guitar “was very original when it was released on the market in 1958, it cannot however deny the evolution of the market during the following 50 years, which was henceforward characterised by a wide variety of available shapes.”
The court also dismissed the notion that the presence of other V-shaped guitars in the market would confuse or mislead customers into thinking they were buying a Gibson, stating, “The presence on the market of a significant number of shapes encountered by consumers makes it unlikely that they will regard a particular shape as belonging to a specific manufacturer rather than being just one of the variety of shapes characterising the market.”
The V-style Framus WH-1 modelThe judgement goes on to confirm that Gibson waited too long by not filing the trademark until 2010, and that in that time it became “One possible variant of the many existing shapes, so that when the application for registration of the challenged mark was filed, the V-shape did not depart significantly from the norms and customs of the sector.”
The ruling appears to secure the freedom of EU guitar makers to produce V-shaped guitars, but what remains to be seen is what, if any, impact this ruling will have on the pending case against Dean and Luna Guitars, given that Gibson’s Flying V US trademark was a key part of the filing.
Guitar.com has approached Gibson and Warwick for comment on this story, and will update it when they respond.
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