Licensing Industry

As the games industry looks on in bewilderment at the ping pong litigations firing back and forth between Gibson, Activision and Harmonix regarding a 1999 Gibson patent for technology to simulate a musical performance, those involved in the musical instrument trade shrug and ask ‘what’s new?’ Gibson relishes a good court case and has not been averse to leaping in where fools dare not tread for a good dozen years now.

Gibson is the archetypal, it would claim the original, electric guitar company, which in the 1940s revolutionised modern music by making a solid-bodied guitar with magnetic pickups that could send an electric signal to an amplifier. The amplifier, of course, meant that the guitar could at last be heard in jazz combos, the solid body meant that the horrors of feedback could be more easily averted. The guitar was co-designed by Gibson and the jazz guitarist, Les Paul, from which the guitar took its name, and was based on a standard guitar shape at around half size, with a ‘cutaway’ under the neck joint, which allowed easier access to the higher notes on the fretboard.

While revolutionary in its technology, the design was nothing particularly new – classical guitar luthiers had been adding a cutaway to some models as far back as the late 18th century – and for a long time Gibson tacitly accepted that body shape was not a contentious issue. It has long been accepted in guitar manufacturing circles that proportions were sufficient to avoid any accusations of plagiarism, just as long as the guitar’s headstock and the company brand and model names were left alone.

Then, during a period of serious decline for all things guitar – the 1980s, Gibson was suffering as much as any manufacturer as the synthesizer threatened to kill off guitar music altogether, and was bought by a consortium from the Harvard Business School led by Henry Juszkiewicz in 1986. It took the new management a good ten years to turn the business around – which they did remarkably well – and then went down the corporate road of acquisitions to grow the company. In 1996, Juszkiewicz played another corporate card and filed for a patent in the US and Europe, based on a photograph of the Les Paul guitar.

The finer details of this suit are unknown as the application was withdrawn sometime after January 1999, having never reached the Trademark Journal for comments or opposition, although experts speculate that this is often on the advice of the examiner that the application will not be successful.

Two years prior to the European application, Gibson filed a separate application for a trademark of the Les Paul body shape, this time based upon a line drawing. This application did reach the Trademark Journal in February 1998, and a consortium of objectors was raised by some of the UK’s MI suppliers, including John Hornby Skewes & Co and Sound Technology, among others. After two years of legal wrangling, the application was eventually registered on February 4th 2000, with the proviso that it is the shape of the Les Paul guitar and not any single cutaway solid body electric.

Then in March 2004 Gibson tried to sue the Paul Reed Smith (PRS) guitar manufacturer, claiming that PRS’ ‘Singlecut’ model was a direct infringement of Gibson’s trademark in the US (the proviso maintained in Europe meant there could be no such case there). Another two-year wrangle eventually turned in favour of the PRS, with Gibson’s counsel, astonishingly albeit allegedly, stating in his summing up that ‘only an idiot would mistake a PRS Singlecut for a Gibson Les Paul’.

Since then, Gibson has continued its (unusual for the MI trade) developments into the world of high technology, evolving a unique audio transmission and reception system (Magic) that uses Ethernet technology, and has since incorporated that into a Les Paul guitar. Further to that, the recent merger with the Danish audio giant, TC Electronics, the erstwhile rock n roll purists now clearly see the electric guitar as a mere link in the signal processing chain of musical performance and recording.

When Gibson became involved with Harmonix, and by default Activision, eyebrows were raised in the musical instrument business. In the battle for the world’s leisure money, PlayStations, Xboxes and the like are widely considered to be ‘Public Enemy Number One’, but it was once again an illustration that Juszkiewicz plays by nobody’s rules but his own.

Taking Harmonix to court is obviously a case Gibson feels it can win – and it will now, following Activision’s pre-emptive litigation against Gibson, feel wholly justified in its actions. That justification will be based on legal advice that leads to a potentially big payoff – right and wrong in everyday terms, you can be sure, will not apply.

Gibson is a big player in the MI world, and while it is under the direction of, predominantly, one man, it is still a corporate in the archetypal sense of the word and functions as such. Its teams of lawyers are on the hunt for work at all times and it is vehemently protective of everything it owns and covetous of any potential revenue streams. With the multi-million pound trade that Guitar Hero and Rock Band are currently generating, you can rely on one thing – Gibson has its teeth in and is more than capable of seeing the most ferocious of litigations through to the most bitter of ends.