The Fake Gibson Thread

bum

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I love reading this kind of *justification*. If it says Gibson, and it isn't a Gibos...it's a FAKE. Intent? BS. It's still a fake, nothing else.

I agree.
We have this odd thing with guitars, like would you pay a few thousand for a 'replica' Rolex?
 

martin H

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AFAIK, Gibson has a trademark on their headstock and les paul body shape. They famously sued PRS over the body shape.

They won on the body shape claim in the local district court but they lost on appeal in the 6th Circuit"

"With respect to Gibson's trademark-infringement claim, we REVERSE the district court's decision granting summary judgment in favor of Gibson, REVERSE the district court's decision denying summary judgment in favor of PRS, and VACATE the permanent injunction issued by the district court. We DENY all other claims and motions AS MOOT, and REMAND the case to the district court with instructions that summary judgment be entered in favor of PRS on Gibson's trademark-infringement claim."

Gibson Guitar Corp. v. Paul Reed Smith Guitars, LP, 423 F.3d 539, 553 (6th Cir. 2005) .....
 

martin H

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And if federal law was all we lived under, this might be correct; most of us, however, live in states with independent criminal codes. I know my state makes the possession of ONE counterfeit item a crime:


(765 ILCS 1040/8)
Sec. 8. Sentence.
(a) A person who knowingly sells, offers for sale, holds for sale, or uses fewer than 100 counterfeit items or counterfeit items having a retail value in the aggregate of $300 or less is guilty of a Class A misdemeanor and shall be fined at least 25% of the retail value of all counterfeit items but no more than $1,000, except as follows:
(1) A person who has a prior conviction for a

violation of this Act within the preceding 5 years is guilty of a Class 4 felony and shall be fined at least 50% but no more than 100% of the retail value of all counterfeit items.
(2) A person who, as a result of the offense,

causes bodily harm to another is guilty of a Class 3 felony and shall be fined at least 50% but no more than 100% of the retail value of all counterfeit items.
(3) A person who, as a result of the offense, causes

serious bodily harm to, or the death of, another is guilty of a Class 2 felony.

We've discussed that one before Larry. The Ill law is recent, and a handful of other states have done similar things. The "knowingly sells, offers for sale, holds for sale" language reflect most existing counterfeiting law, but someone playing their own replica does none of these things.

The problem is in the word "uses," in that it generally doesn't have the same connotation statutorily as it does in common usage. If you are writing with a counterfeit pen or looking at a counterfeit watch, you are "using " it in the dictionary sense, but the legal definition of "Use" to trigger a criminal penalty is usually more narrow. This problem is particularly illustrated by the fact that the statue doesn't criminalize mere possession, but only possession with intent to distribute. It's something of a strained construction that you can posses the chibson, but if you pluck a string on it ("use it") you have committed a felony.

If the Illinois statue does criminalize (as a felony) the "use" of a Chibson, i.e. playing it or writing with a counterfeit Mont Blanc pen, or putting your purse in a counterfeit Gucci bag , I doubt it will withstand constitutional scrutiny.
 

rlefty

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And lost.

Sure, but Gibson sued on the grounds of a generic single cut, BECAUSE they have their own shape trademarked. At first Gibson won the case, then lost on appeal. Had PRS copied the actual body shape of a Les Paul, and not merely the essence of a single cut, it probably would have been a different outcome.
 

rlefty

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They won on the body shape claim in the local district court but they lost on appeal in the 6th Circuit"

"With respect to Gibson's trademark-infringement claim, we REVERSE the district court's decision granting summary judgment in favor of Gibson, REVERSE the district court's decision denying summary judgment in favor of PRS, and VACATE the permanent injunction issued by the district court. We DENY all other claims and motions AS MOOT, and REMAND the case to the district court with instructions that summary judgment be entered in favor of PRS on Gibson's trademark-infringement claim."

Gibson Guitar Corp. v. Paul Reed Smith Guitars, LP, 423 F.3d 539, 553 (6th Cir. 2005) .....

They lost because they do not have a trademark on a "single cut guitar body". They certainly have a trademark on the dimensions of *their* single cut body shape, which I think is what we're talking about.
 

martin H

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They lost because they do not have a trademark on a "single cut guitar body". They certainly have a trademark on the dimensions of *their* single cut body shape, which I think is what we're talking about.

Correct - that was one of the key decisions of the sixth circuit, although it referred to the silhouette of the LP rather than the dimensions, indicating that something with identical proportions but a bit bigger or smaller might still infringe.

"Prior to conducting our substantive inquiry, we take this opportunity to clarify a fundamental issue. The district court appears to have confused trademark law and trade-dress law when it concluded that the LP Trademark covered the entire guitar, rather than the two-dimensional silhouette included in the registration papers, Gibson I, 311 F.Supp.2d at 719; see also Gibson II, 325 F.Supp.2d at 852. This affected the remainder of the district court's reasoning and prevented proper analysis of the parties' claims. Specifically, we do not believe that the two-dimensional drawing included in the LP Trademark should be construed to create a trademark on the entire guitar as depicted in photographs accompanying the trademark application (including the location and style of knobs, switches, and other hardware)"

I really wanted to make two points First that this debate is a a trademark question, not a copyright question. "The right to copy" is reserved to the copyright holder. If the LP shape was "copyrighted" the mere act of making a replica would be a violation. However, a trade mark violation requires the uses of the mark in commerce in a way likely to cause confusion as to the origin of the product.

Second, there is, to my knowledge no state enforcement of trade marks. It is up to the holder to bring suit based on the unauthorized use of the mark, I.e, it is up to Gibson to decide if a high end luthier may sell replicas. The act is not inherently illegal, but is an act that may subject you to statutory civil liability if the owner of the mark sues. It is only when a replica passes into the realm of being "substantially indistinguishable by the average member of the public so as to cause confusion in the market " that counterfeit law kicks in. Stamping the back of the Headstock " Replica Made by James Smith" may be sufficient to avoid a replica being considered "counterfeit."

Ditto a Chibson that says "Chibson" on the headstock may not be found to be a "counterfeit" ( see In re Bulova Watch Co., (C.S.D. 80–77, 14 Cus.Bull. No. 30, July 23, 1980) in which the 2nd circuit found that the average member of the public would know that a cheap "Bolivir" watch that was similar to a Bulova watch was not the same thing.

However its other similarities may still render it a trademark violation, but you havev to use the mark in commerce, and this is a civil matter that Gibson must address if they wish.
 

larryguitar

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We've discussed that one before Larry. The Ill law is recent, and a handful of other states have done similar things. The "knowingly sells, offers for sale, holds for sale" language reflect most existing counterfeiting law, but someone playing their own replica does none of these things.

The problem is in the word "uses," in that it generally doesn't have the same connotation statutorily as it does in common usage. If you are writing with a counterfeit pen or looking at a counterfeit watch, you are "using " it in the dictionary sense, but the legal definition of "Use" to trigger a criminal penalty is usually more narrow. This problem is particularly illustrated by the fact that the statue doesn't criminalize mere possession, but only possession with intent to distribute. It's something of a strained construction that you can posses the chibson, but if you pluck a string on it ("use it") you have committed a felony.

If the Illinois statue does criminalize (as a felony) the "use" of a Chibson, i.e. playing it or writing with a counterfeit Mont Blanc pen, or putting your purse in a counterfeit Gucci bag , I doubt it will withstand constitutional scrutiny.

While I'm not a lawyer, I would not want to argue the use of the word 'uses' to NOT include playing one on stage in public, for instance. And while I understand the specialized definitions of words within the context of the law, it seems unlikely that 'using' a guitar in the primary manner one 'uses' a guitar would not constitute 'use' in the content of this statute; at least, I would not want to argue that.

My main concern is your (IMHO, overly broad) statement that owning a counterfeit isn't illegal; I believe that in at least some jurisdictions (including Illinois) it either is, or may well be. Hate to see someone get hung up unwittingly.

Larry
 

ajay

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Slash probably still has the famous replica Les Paul that the producer purchased for him when he just couldn't get the sound he wanted from a bevy of Genuine Gibsons. He thought it was a genuine '59, and it was like magic. As soon as he strapped on the replica it was game on, and G&R made history. I'm sure that the replica was used on "Sweet Child Of Mine", and "Welcome To The Jungle". Many of You probably know the builder, which I do not. But apparently the replica's that he was making were built with all vintage parts, and tonewoods very similar to those of the fifties and early 60's.
 

rlefty

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Second, there is, to my knowledge no state enforcement of trade marks. It is up to the holder to bring suit based on the unauthorized use of the mark, I.e, it is up to Gibson to decide if a high end luthier may sell replicas. The act is not inherently illegal, but is an act that may subject you to statutory civil liability if the owner of the mark sues. It is only when a replica passes into the realm of being "substantially indistinguishable by the average member of the public so as to cause confusion in the market " that counterfeit law kicks in. Stamping the back of the Headstock " Replica Made by James Smith" may be sufficient to avoid a replica being considered "counterfeit."

My take on all of this (I am also not a lawyer) is:

Gibson *can* sue and certainly *threatens to* over their trademarks, a catalog which includes the entire design of all of their body/neck/headstock shapes. In fact, I *believe* that's why Agile changed their design(s). That's certainly why Warmoth stopped producing Les Paul shaped and Explorer shaped bodies and necks/headstocks (I know because I inquired about this). And I'd be pretty certain that there are numerous other examples if someone really wanted to research this.

The biggest problem with the guitars coming from China is that they are manufactured and sold on foreign soil. Really, the US law enforcement can only get involved as they come in to the country. Gibson can only get involved by pulling business from China (which they won't) or complaining to the Chinese government (which would do nothing).

In fact, you'll find that brands like Tokai, Burny, etc make high quality instruments using Gibson's designs. But they have no direct presence in this country. If they did, I'd bet you a dollar that threatening cease and desist letters would have been mailed a while ago.

Now, if someone is selling a Chinese Gibson-branded guitar in THIS country, that is straight up illegal. But if it's a single guitar, it's small potatoes and usually not worth anybody's time.

By the way, if Dimarzio can trademark double creams, what hope do we have? :)
 

jporch316

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Slash probably still has the famous replica Les Paul that the producer purchased for him when he just couldn't get the sound he wanted from a bevy of Genuine Gibsons. He thought it was a genuine '59, and it was like magic. As soon as he strapped on the replica it was game on, and G&R made history. I'm sure that the replica was used on "Sweet Child Of Mine", and "Welcome To The Jungle". Many of You probably know the builder, which I do not. But apparently the replica's that he was making were built with all vintage parts, and tonewoods very similar to those of the fifties and early 60's.

Yes - not only that he now only uses his derrig built replica for studio use only on the majority of tracks. Not sure its illegal for slash to own it - american laws and states baffle the hell out of me - but it makes the majority of his work illegal to listen to???
 

jdto

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Slash probably still has the famous replica Les Paul that the producer purchased for him when he just couldn't get the sound he wanted from a bevy of Genuine Gibsons. He thought it was a genuine '59, and it was like magic. As soon as he strapped on the replica it was game on, and G&R made history. I'm sure that the replica was used on "Sweet Child Of Mine", and "Welcome To The Jungle". Many of You probably know the builder, which I do not. But apparently the replica's that he was making were built with all vintage parts, and tonewoods very similar to those of the fifties and early 60's.

I've read that Slash got the guitar partway through recording AFD after his "Hunterburst" disappeared, either being stolen or pawned for drugs. According to this article, he recorded a lot of the album with some of his crappier guitars, none of which were Gibsons. So he didn't choose the replica over "a bevy of Gibsons", but rather it was what he got from his producer and it worked for him.

Here's the article.
The Legend of Slash
 

ajay

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Yeah, I read a different post, so You can only trust what Slash says. It sounds like it was instant gratification. I have Slash CD's, but no G&R. They weren't my type of music. I was more a Nirvana guy. Never liked Axl's vocals, but I liked Slash.
I would like to have a Kris Derrig Replica though. Gibson even made relicas of a replica. Imagine, Gibson copying a copy. That is making some history I'd say.
 

rlefty

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I've read that Slash got the guitar partway through recording AFD after his "Hunterburst" disappeared, either being stolen or pawned for drugs. According to this article, he recorded a lot of the album with some of his crappier guitars, none of which were Gibsons. So he didn't choose the replica over "a bevy of Gibsons", but rather it was what he got from his producer and it worked for him.

Here's the article.
The Legend of Slash

Slash has, however, since had his choice of a bevy of Gibsons, including some bursts, but still chooses to record with that guitar. As I understand it, that guitar has been his main recording guitar since AFD, for every single record he's done.
 

jdto

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Yeah, I read a different post, so You can only trust what Slash says. It sounds like it was instant gratification. I have Slash CD's, but no G&R. They weren't my type of music. I was more a Nirvana guy. Never liked Axl's vocals, but I liked Slash.
I would like to have a Kris Derrig Replica though. Gibson even made relicas of a replica. Imagine, Gibson copying a copy. That is making some history I'd say.

I got into GnR when I was about 17 or 18, mainly because my girlfriend liked them. I was into a lot of different music, from NWA and A Tribe Called Quest to AC/DC and The Cult, but GnR were pretty good on AFD. I agree it's funny that Gibson made a replica of a Gibson replica.

Slash has, however, since had his choice of a bevy of Gibsons, including some bursts, but still chooses to record with that guitar. As I understand it, that guitar has been his main recording guitar since AFD, for every single record he's done.

Right. Well, it is "the one" for him. He was lucky to find it and I'm not surprised it's still his go-to. When a guitar clicks with you like that, it's pretty cool.
 

rlefty

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I got into GnR when I was about 17 or 18, mainly because my girlfriend liked them. I was into a lot of different music, from NWA and A Tribe Called Quest to AC/DC and The Cult, but GnR were pretty good on AFD. I agree it's funny that Gibson made a replica of a Gibson replica.

I got into GnR in the late 80's when I was maybe 11 or 12. I think it's funny that people get into arguments over Slash's effect on the success (or failure) of Gibson in the late 80's. It's pretty clear that Gibson lucked into what amounted to the best, free advertising campaign imaginable. The biggest, baddest new band in the world with a constantly playing video on what was the newest and most important technological advance in pop culture at that time (for better or for worse): MTV.

But the thing that's even FUNNIER is that the guitar that really got everyone's attention WAS a Gibson. It's the '88 HCSB guitar that Slash played in the Sweet Child and Paradise City videos that everyone recognizes. AFD might have been made with the Derrig, but that '88 was like the sixth member of the band in those videos in the late 80's (seventh, if you count the top hat).
 

Bobby Mahogany

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Am I correct in assuming that most Chinese made Chibson's are manufactured primarily to sell to the Chinese people?
(...)
And as another member said in this thread in response to the OPs comments regarding Chibson quality, if they were that damn good they would just start thier own line of guitars... I.e. Tokai, etc.

WTF???
If they are that good they should run their own brand and if they are as good as you are saying, they will sell.

Chinese people with money spend for "Status".
A better cheaper guitar wouldn't do because... it's not a Gibson.
It's the Gibson name that triggers the "want it" factor.
Same for watches or any other "luxury" item.
Status, status I tell ya!
 

Neil(UK)

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Chinese people with money spend for "Status".
A better cheaper guitar wouldn't do because... it's not a Gibson.
It's the Gibson name that triggers the "want it" factor.
Same for watches or any other "luxury" item.
Status, status I tell ya!


True.

There are plenty of people in the West like that too. Which is why there is a brisk trade in Chinese counterfeit guitars, watches, purses etc etc.

People like to fool others with their belongings and hopefully themselves.
 

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