June 21, 2019
This past week Gibson Guitars filed a trademark complaint against Armadillo Enterprises, parent company of Dean Guitars. Gibson claims Armadillo infringed on Gibson’s designs of their Flying V™, Explorer™, ES-335™, Hummingbird™ and Moderne™ guitars as well as their headstock designs and Dean’s “winged dove” logo.
According to Gibson – “Gibson has spent millions of dollars in the advertising and promotion of the Gibson trademarks, which have been used in conjunction with various Gibson stringed instruments.”
The claim also alleges that Armadillo used the designs to deceive customers into believing they were buying Gibson products. It also suggested that “Armadillo had constructive knowledge” that it was infringing Gibson’s marks.
Dean Guitars has been around since about 1976. Their guitars have been used by many famous guitarists such as Michael Schenker, ZZ Top’s Billy Gibbons, Dimebag Darrell and Dave Mustaine. Even Edward Van Halen has been pictured with a Dean V in the early eighties.
Let’s discuss what’s known about the facts in this case and then I’ll point out where I think Dean might have copied Gibson’s designs or if Gibson’s claims have any perceived merit. (The pictures shown below are for illustration purposes only. Patents are not the same as trademarks.)
Topic 1 – Headstock Design. Gibson isn’t specifying which headstock design they are suing over but let’s assume they are claiming the Dean split headstock design is a copy of the split headstock featured on the application for a U.S. Patent filed in 1957. This is the only split headstock design from Gibson on record. (Click on the images below to enlarge)
If you look at Gibson’s design, the headstock is clearly split and off-center and is more L-shaped than V-shaped. The Dean headstock is clearly V-shaped with the “wings” evenly split between the left and the right. Production Explorers in 1958/9 used the “hockey stick” or “scimitar” design in the 1950s as do the current models. Note: further investigation shows Gibson trademarked the body shape and not the headstock but this a good Gibson history lesson.
The Explorer was one of three designs for which Gibson applied patents in 1957 including with the Flying V and the Moderne. Only the Flying V and the Explorer made it into production. Both the Flying V and the Explorer were discontinued due to poor sales after 1959. Flying V’s were reintroduced in 1967 and the Explorer in the 1970s. In 1982 Gibson released the Moderne into production in a special run. It was not a big seller and production was soon discontinued. As seen on the patent application, the Moderne had an wedge-shaped headstock that was unique to that guitar. Gibson released the Moderne again to the public in 2012 in another special run, this time with the split headstock design shown on the Explorer patent application. At least one Moderne that was a factory prototype had the split headstock design as shone on the Explorer’s original patent application. It was never put into production until it was officially released in 2012 – over fifty years later. Gibson’s trademark for the Moderne is a standard character mark, meaning they trademarked the word only. There is nothing in Dean’s catalog presently that contains the word “Moderne”; I’ve never seen it in past models either.
A look at the Gibson headstock used on Les Pauls™ and other models versus the one used on some Dean models shows clear differences in design: Gibson uses an “opened book” design (sometimes called a scroll) at the top while the Dean has more of a winged look that mirrors the winged logo. Update: Gibson is referring to this headstock as it’s “Winged Dove” design. In any event; does the Dean headstock look remotely similar? The truss rod cover is a similar, but wider shape. Other companies have been using a similar design to Gibson that are even closer in appearance than Dean.
Being that the headstock designs are clearly different, do you think Gibson has a case against Dean?
Decision – Dean
Topic 2. Body designs – Both the Dean V and the Dean Z bear a strong resemblance to the Gibson Flying V and Explorer as show below. (Click to Enlarge)
They do look similar and there is no doubt that Dean borrowed Gibson’s design for its own models. Here’s the caveat: Dean has been building these models since 1977 without being challenged by Gibson. Gibson didn’t challenge their design until 2016 when then-CEO Henry Juskiewicz filed and then withdrew a trademark infringement claim against Dean. Did Gibson’s lawyers tell Henry the case basically had no merit since Dean along with other brands such as Hamer (now defunct) and ESP and virtually every other electric guitar maker has been making their versions of the Flying V and Explorer since the 1970s and 1980s? Gibson also changed their designs in 1967 when they changed the Flying V from the string-through-body design to the stopbar tailpiece and tune-o-matic bridge. They also changed the pick guard design, moved the volume and tone controls, the pickup selector switch and changed the headstock. As far as Gibson’s claim that Dean infringed on their Hummingbird™ acoustic guitar. I see nothing in Dean’s current line of acoustic guitars that even remotely resembles the Hummingbird in it’s headstock inlays, pickguard or finish. I don’t see a model that looks similar to Gibson’s ES-335™ either, which is the body shape shown on their trademark registration. If they are referring to Dean’s so-called “winged logo” on their headstocks; does it really look like the wings belong to a dove? I did a search at the U.S. Trademark Office and Dean Guitars has only two listings. The relevant one is for their winged logo and nowhere is it described as being a “winged dove” design. Dean’s trademark descriptions reads: ” The mark consists of the word “DEAN” in an upward “U” shape with wings on either side.” To me, the logo looks hand drawn. My guess is Dean Zelinksi drew the logo himself around 1976. No one knows what bird he modeled the wings after. It could have been a dove; it could also have been an eagle, an ostrich or a chicken! Gibson does make an acoustic guitar named “Dove” with the inlay of a dove on the pickguard. Dean has no model with a similar appearance or inlay on its website as of this writing.
Update: Gibson trademarked the Explorer and Flying V bodies (not the headstocks) in 1997, a full twenty years after Dean started building their versions. It will be interesting to see how the courts rule on that. Being that Dean was already making their versions it would seem that they have a better case to continue making them. The courts could also rule that the body shape is generic, as has been argued before with other Gibson body styles (e.g. the ES-335.) Also, in June Gibson lost in the EU General Court its claim for a trademark for their Flying V. The court ruled that the Flying V “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 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.” This ruling may help Dean in it’s defense against Gibson.
As for Gibson’s claim that Dean was trying to fool people into thinking that their guitars were really made by Gibson. I’m trying not to laugh here. Doesn’t the headstock clearly say “Dean” on it? For a little bit of history, take a look at one of the earliest Dean magazine ads featuring The Cars’ Elliott Easton. He was one of Dean’s first endorsers, after meeting Dean Zelinski at a trade show in the late 70s. Does the Dean “ML” he’s holding look like anything available from Gibson, then or now? This ad is from way back in 1980. True, Gibson is not suing Dean over the ML body shape. The point is that even as far back as five decades ago Dean was making it clear that they were a different guitar company than Gibson.
The bottom line: We will see how this plays out in court but it seems like Gibson is a little late to the party here. Dean has been building the same V and Z models for over forty years without a word from Gibson to challenge them. Other builders build similar models as well. Why single out Dean? Is this a ploy to help Gibson reduce the enormous debt it incurred over the years, filing for bankruptcy again last year? Is it designed to make Gibson’s creditors think Gibson will protect itself so that they will be more inclined to give Gibson business loans? Does Gibson’s new CEO think that protecting their brand by suing Dean is going to enhance their reputation? You don’t build (or RE-build in this case) your reputation by suing other guitar makers because they might be cutting into your guitar sales. You build it by making quality instruments that players want; something Gibson has not been doing a good job of up until recently. The main reason Dean Zelinski began building guitars in the 1970s was because he looked at the quality of the guitars that Gibson and others were making at the time and to him, they left a lot to be desired. He started building them himself and shopped them around to the major players in music, who saw the quality in them that Gibson was lacking and became converts. Dean guitars are now owned by another company but their goal is the same – to build high quality guitars that players want. Their list of endorsees is equal to that of Gibson, maybe that’s really what Gibson is upset about.
Update (7/11/2019): Armadillo Enterprises had now countersued Gibson. In the countersuit filed in US District Court for the Eastern District Of Texas on 8 July, Armadillo alleges “tortious interference with Armadillo’s business relationships and/or contracts” on the part of Gibson in the months leading up to the suit’s filing on 6 June 2019. “Prior to filing and/or service of Gibson’s Complaint, Gibson contacted guitar dealers (including Armadillo’s dealers), threatening legal action and demanding that dealers remove all Armadillo guitars with the V, Z, and/or semi-hollow guitar shapes,” the suit reads.
The suit claims that based on “information and belief” that Gibson sent similar letters to other dealers and retailers, “with the intent of disruption Armadillo’s sales and contractual relationships”.
The counterclaim also submits as supporting evidence a letter Armadillo claims was sent to Gibson’s dealer network on 3 June 2019, informing them of the forthcoming Armadillo suit, which the letter states is being pursued in light of Dean and Luna’s “blatant copying” and “counterfeiting” of Gibson designs.
This is backed up with a call to action for dealers to help the company “take back control of Gibson’s famous body shape designs” encouraging them to report any instruments they come across “that you believe uses Gibson’s trademarks without authorization” either through their Gibson rep or via an online form on the Gibson website.
The counterclaim notes that many Armadillo dealers are also Gibson dealers and claims that these “threatening communications” led to numerous calls from dealers who were, “concerned and afraid to continue to deal with Armadillo”, and as such damaged its sales and business relationships.
In addition, Armadillo is attempting to have Gibson’s trademarks cancelled and not just invalidated, stating: “The above designs have been prominently used and promoted for years and, in some instances, decades,” the suit reads. “All the while, Gibson sat on its purported rights and failed to object.” The suit goes on to claim that Dean has invested millions of dollars promoting and marketing guitars with those shapes in that period, and as such, “some of Gibson’s accused trademarks are invalid because they are generic and/or incapable of serving as a source identifier for guitars”.
Armadillo claims that its long history of making these guitars renders the notion that they could be counterfeits invalid – “Armadillo’s product shapes are commonplace and are all branded with its distinct, well-known Dean and/or Luna house marks and distinct-looking headstocks,” the motion reads. “To suggest that famous musicians like Michael Schenker, Eric Peterson, Christian Martucci, and John Connolly have openly promoted, played, and endorsed spurious, ‘counterfeit’ products on stages across the world is absurd.”
Armadillo goes on to state that: The counterclaim demands the cancellation of Gibson’s Flying V, Explorer and ES-335 body shape trademarks, and seeks the “maximum damages permitted by law” for the alleged interference caused by the company’s communication with Dean and Gibson dealers.
Dean is hitting back, and hitting back hard.
What do you think about Gibson’s lawsuit against Dean Guitars?
For more on Dean Zelinski and the history of Dean Guitars look here.
To see Dean Guitars current product line look here.
The views expressed here are for entertainment purposes only. There is no intent to influence the court case in any way, shape or form.