Gibson's Flying V Body Shape Trademark Appeal Dismissed in EU Court

Updates on Gibson's ongoing trademark fights continue to come to light. Earlier today, as originally reported by Guitar.com (which also broke the news on Gibson's lawsuit against the parent company of Dean Guitars), the European Union General Court ruled that Gibson's Flying V body shape design was not distinct enough to merit trademark protection against other V-shaped guitars.

This case dates back to 2010, when Gibson first filed for the trademark with the EU Intellectual Property Office, a trademark that was challenged in 2014 by Warwick and Framus owner Hans-Peter Wilfer. After that office decided in favor of Wilfer—ruling that, as far as musical instruments are concerned, the V shape is not a protected trademark—Gibson went through a series of appeals, landing at the EU General Court.

Today, the General Court agreed with the previous decisions against Gibson and dismissed Gibson's appeal. While some General Court cases can be further appealed to the EU Court of Justice, this could very well be the end of the road for Gibson's Flying V body shape trademark battle in the EU. (As of April 2019, appeals to the higher court for cases that have already been considered twice, as Gibson's has, are not likely to be heard.)

In the ruling, the panel of General Court judges wrote:

"... although the applicant may rightly rely on the fact that 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 originality of a shape must be evaluated in the light of the situation on the market taking as the starting point the date of filing of a three-dimensional mark, in this case 16 June 2010."

Summarizing the appeal board's 2018 decision, the General Court wrote that "consumers could not base their decision to purchase solely on the V-shape as an indication of origin, since that shape is devoid of inherent distinctive character."

Although, of course, laws and courts in the European Union and the United States are different, there are some parallels here to Gibson's ongoing trademark lawsuit against Armadillo Enterprises (parent company to Dean and Luna Guitars). Namely, that Gibson applied for trademark protection in the US for its V and Explorer shapes in 1997, decades after Dean and many other companies had been making V- and Explorer-shaped guitars.

In January 2017, Gibson filed two more Flying V trademarks in the EU, which detail more design elements—like the bridge, electronics layout, and headstock. Today's ruling refers to just the body shape alone. Read the General Court's reasoning here.

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