Gibson vs. Dean Lawsuit – What we know right now …

This is what we were able to dig up so far:

Gibson Brands, Inc. v. Armadillo Distribution Enterprises, Inc. et al

Plaintiff: Gibson Brands, Inc.
Defendant: John Doe 1-10 and Armadillo Distribution Enterprises, Inc.
Case Number: 4:2019cv00358
Filed: May 14, 2019
Court: US District Court for the Eastern District of Texas
Presiding Judge: Amos L Mazzant
Nature of Suit: Trademark
Cause of Action: 15:1114
Jury Demanded By: Plaintiff

Docket Report

This docket was last retrieved on May 14, 2019.

Date Filed Document Text
May 14, 2019 Filing 2 SUMMONS Issued as to Armadillo Distribution Enterprises, Inc. (rpc, )
May 14, 2019 In accordance with the provisions of 28 USC Section 636(c), you are hereby notified that a U.S. Magistrate Judge of this district court is available to conduct any or all proceedings in this case including a jury or non-jury trial and to order the entry of a final judgment. The form #Consent to Proceed Before Magistrate Judge is available on our website. All signed consent forms, excluding pro se parties, should be filed electronically using the event Notice Regarding Consent to Proceed Before Magistrate Judge. (rpc, )
May 14, 2019 Case Assigned to District Judge Amos L. Mazzant, III. (rpc, )
May 14, 2019 Filing 1 COMPLAINT against All Defendants ( Filing fee $ 400 receipt number 0540-7268110.), filed by Gibson Brands, Inc.. (Attachments: #1 Exhibit, #2 Exhibit, #3 Exhibit, #4 Exhibit, #5 Exhibit, #6 Exhibit, #7 Exhibit, #8 Exhibit, #9 Civil Cover Sheet, #10 Corporate Disclosure, #11 AO Form 120, #12 Summons(es))(Howen, Stephen)

Source: https://dockets.justia.com/docket/texas/txedce/4:2019cv00358/189653

Dean’s alleged response to their dealers regarding this:

 

 

Here’s what we know:

  • Issues of Trademark Infringement, Trademark Counterfeiting & Trademark Dilution & Unfair Competition.
  • Seeking a total of 14M, at a max of 2M per infringement, making a total of 7 infringements.
  • 7 Infringements include : Flying V, Explorer, ES, SG, Open book headstock, Hummingbird Acoustic & Moderne.
  • This beef w/ Dean started back in October 2017, when Gibson first sent Dean a C&D letter, but couldn’t follow through given Gibson’s financial woes.
  • Resurfaced May 2019.

Here’s what no one is talking about:

2 items:

1) The Location:

Eastern District of Texas : “the eastern district of Texas, where thousands of patent cases are brought each year — 2,500 in 2015 alone! — 95 percent of which are initiated by non-practicing entities, according to Robin Feldman, a professor at the University of California’s Hastings College of the Law. The eastern district includes Tyler (population 101,000) and some patent lawsuits are filed there. But most are filed in Marshall (population 24,000), an out-of-the-way town on the eastern edge of Texas, just 20 miles from Shreveport, Louisiana. Indeed, an astonishing 25 percent of all patent litigation in the U.S. is filed in Marshall. It’s not too much to say that patent litigation is the engine that drives Marshall’s economy.”

“By the early 2000s, Marshall had become notorious in patent circles for its “rocket docket”, rules designed by a now-retired judge named T. John Ward to move patent cases along quickly. “He limited the number of pages lawyers could file in their motions, set strict timetables for hearings, and used a timer to rein in lawyers’ presentations in the courtroom“.

Line 6

“The combination of the rocket docket and a jury pool that seemed sympathetic to patent trolls — perhaps seeing them as little guys fighting big corporations — caused companies to seek settlements more often than not. This also amounted to a victory for the trolls because it meant that the companies were agreeing to pay them.”

(source: https://www.bloomberg.com/opinion/articles/2017-05-25/the-texas-town-that-patent-trolls-built-j34rlmjc)

2) The Jury Pool:

Gibson has specifically asked for a trial by jury.  Why is this important?  Well, any guitarist can easily tell the difference between a Gibson and a Dean, but can your mom, dad, or average Joe?  In our humble opinion – that is the angle here.  They are depending on a trial to say ‘YES, they look the same’, without a long, drawn out trial.

 

Some problems that we see:

  • Back in 07, Fender tried to copyright the Strat body shape, but because it was in the public domain for so long, and because they didn’t enforce it, they were denied.
  • Back in 06, Gibson loses in the sixth circuit court against PRS.  Basically Gibson said there is confusion in a smokey bar, and the court said there is no confusion at the point of sale.  Supreme Court denied an appeal.
  • So, Fender lost.  Gibson lost.  Given Dean’s V has been around for over 40 years, one can argue that too much time has passed where Gibson didn’t enforce their trademark, so why do this all over again, especially for only 14M$.

 

So … WHY NOW?

Here’s our opinion … Gibson’s Strategy to win is based on location & jury.  And, to quote Sun Tzu from The Art of War “To win one hundred victories in one hundred battles is not the acme of skill. To subdue the enemy without fighting is the acme of skill.”

With that said … why now?  We think it’s simple:

  • Gibson has a new CEO.
  • New business decisions.
  • Goal of turning the financials around.
How do they do that?  Reduce competition.
Things to consider :
  • Race Judicata – get a quick decision, set a precedent.
  • Collateral Estoppel – puts them in a position to go after other companies if they are successful w/ a verdict.  Also gets them out of the public domain, meaning other companies can’t use the public domain argument.

So what’s the risk to Gibson?

  1. They lose the lawsuit.
  2. They spent money they won’t get back.
  3. Marketplace reaction.
With that said – they can afford the lawsuit.  They picked an easy target (smaller company with many similar models).  They picked models that are easy to win in a location that’s easy to win and market reaction always dwells over time.  They stacked the deck in this scenario.

End Results / Desired Result: 

Reduced competition, better financials and market position over the long haul, with precedence of getting out of the public domain.

The Deleted Video Everyone is Talking About:

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About the Author: Hello. Welcome to TheToneKing.com! My name is Louis, but in name of good fun & entertainment - I call myself The Tone King. This website was born back in 2008, to compliment the videos I started uploading to YouTube on guitar & related gear (guitar, amps, pedals, etc.). It has since grown, thanks to the thousands that tune in, making it what it is. If you subscribe to TheToneKing.com, you can expect lots of Guitar, Amp, Pedal Reviews & Shoot-Out videos. I also have monthly Live Webcasts, perform Artist Interviews, and try to get all the juicy coverage Backstage and at trade-shows like NAMM. The cherry on top is that there are no shortage of How-To Videos & TTK Killer Deal Alerts getting you the most knowledge & gear into your hands & mind! Thanks for stopping by to check out my website! Rock ON!

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