Has Dean just won against Gibson? Unpacking the latest development in their legal battle
Over the last 24 hours the guitar internet has been abuzz with the latest development in the lawsuit between Gibson and Dean. Both companies have stated their confidence that they will prevail in the end, while commentators are summing things up as a huge victory for Dean. Some commentators are also somewhat pre-empting the final judgement – at the time of writing, Phillip McKnight’s video on the topic is titled Gibson Loses Lawsuit To Dean, Will We Have To Pay The Bill?. But has Gibson actually “lost” anything yet?
READ MORE: Dean Guitars claims to have overturned Gibson Flying V trademark verdict on appeal
It’s been over two years since a jury first found that Dean’s parent company Armadillo (and investment partner Concordia) had infringed on Gibson’s guitar body designs. Following this, the Texas District Court that oversaw the case ordered Dean to stop selling a number of its own shapes – including its popular V and Z guitars. Since then, Dean/Armadillo/Concordia (who I’ll just call Dean, for the sake of simplicity) has been going through the appeals process, aiming to get the Fifth Circuit Court Of Appeals to re-open the case.
What has the court said?
Yesterday, Dean was successful in that regard, with the case remanded to the original court for a new trial. And before we unpack the three-judge panel’s reasoning for the decision and the statements from both companies that followed, it’s important to clarify what the appeals court has actually said. All that has technically been ordered, for now is: ‘go back and do it again’.
So why are people framing this as such a win for Dean? Well, the opinion document accompanying the judgement sheds some light on why a retrial is needed. In the judges’ view, the District Court was wrong to disallow evidence from before 1992 and after 1997. This is significant as one of Dean’s major arguments against Gibson was that its body shapes are generic, IE, so common in their usage they are legally unprotectable. However, as the court recording reveals, Dean’s attorney Ron Bienstock has argued that this five-year window did not allow for Dean to property demonstrate its genericism argument to the jury – there are swathes of adverts from that could demonstrate that other brands were selling visually similar guitars to Gibson’s designs, well before Dean’s existence, and well before Gibson brought this suit.
The opinion, essentially, agrees with Ron, stating that the district court was wrong to not allow this pre-1992 evidence in the original trial – as it was potentially relevant to Dean’s central argument, and as the jury didn’t see it, they didn’t get to see the full context in which the suit was taking place.
It’s put like this in the document: “The jury in this case ‘was not presented with a complete picture of what happened’ prior to the alleged period of infringement and heard little to no evidence supporting Armadillo’s theory that the Gibson Trademarks were generic at the time of their registration […] Thus, it is apparent that the wholesale exclusion of all pre-1992 third-party-use evidence affected Armadillo’s substantial rights.”
The new judgement also specifically states that “the judgement of the District Court is reversed” – the word “reversed” is, going by its common usage, pretty loaded here. However, a “reversal”, legally, doesn’t mean a new judgement in Dean’s favour – it just means we’re back to square one. Given those claims that Gibson has “lost a lawsuit” flying about, it’s important to clarify that the judgement has not been totally overturned in Dean’s favour – it’s less that Dean has now “won”, it’s instead just “not lost.”
What have Gibson and Dean said?
Gibson and Dean’s statements regarding this decision read very differently, as you might expect. Let’s start with Dean’s: it frames the decision as a major victory, which is understandable. Dean had opposed Gibson’s initial motion to exclude this evidence, and, as the opinion notes, it was Dean’s argument that was hurt by the lack of this evidence. A new trial with a wider scope of evidence could shake out very differently.
But it’s important not to jump the gun here. In Dean’s statement, Pamela Rubinson calls the decision a “complete vindication”, and says “we have fought this battle and won” – but, it is just one battle – the full legal fight has now just gotten a lot bigger, and Dean’s overall success is not a foregone conclusion, even if the new evidence could have a large impact.
There is also the possibility that Dean, the far smaller of the two companies and already mired in other issues, could be hurt a lot more by a loss later on down the line, with ramping legal costs and a second chance for Gibson to file for damages.
Gibson’s statement, in comparison to Dean’s, is fairly curt. Emotive quotes about battles are notably absent. Instead, it only hints at what the decision actually means, and underplays the change in playing field for the retrial. It states, simply, that “the Court of Appeals found that the District Court allegedly abused its discretion in excluding certain evidence.” However “certain evidence”, in this case, encompasses decades of guitar advertisements released before 1992 and after 1997 – that’s quite a lot more evidence Dean now has at its disposal to make its argument.
Gibson is also clear that it is not particularly happy about the possibility of a retrial, saying that it will be “requesting all the appellate judges reconsider the panel decision,” as it’s “confident that the Texas Judge and jury got it right the first time.”
The statement also relies on the brand’s heritage to assert its confidence in a second victory: “Gibson, like other iconic American brands, has invested in meaningful research, development and innovation over 130 years, and is confident that in a retrial the jury will again find in favour of affirming Gibson’s well recognized intellectual property rights, rights that have been Gibson’s for decades.”
So what’s next?
Unless Gibson is successful in getting the Fifth Circuit judges to reconsider, the case will return to trial. From there, it’s obviously hard to predict what happens – but it’s safe to say that Dean will rely more heavily on its genericism argument, now with the benefit of 50 years of evidence to back it up rather than just five. For Gibson, the challenge will be countering this new evidence and arguing that its body shapes are not generic.
If Dean once again loses the wider fight, it could possibly spell the end, or at least temporary disaster, for the troubled company, depending on the judgement and any damages it must pay. On the other hand, if it is successful, the implications are much more dramatic. If Gibson’s main body shapes are ruled generic, then it opens the door up to other makers, not just Dean, to use them, safe from litigation. We could see a whole new era of Gibson-style guitars, no longer legally called “copies” – they’ll just be guitars. Dean’s full counter-argument also wants to encompass the headstock – could Gibson’s Open Book design become something anyone can use?
But given the last case took three years to resolve – we’re unlikely to see such seismic shifts anytime soon. Of course, we’ll be keenly covering the new case as it unfolds – so stay tuned.
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Source: www.guitar-bass.net
