Gibson loses Firebird body shape trademark in the EU

Back in June, Gibson lost an appeal in an EU court against losing its trademark for guitars that used the Flying V body shape. Now, the company has had a further mark cancelled for musical instruments – this time for the Firebird shape.

The decision, which was made by the Cancellation Division of the EU Intellectual Property Office (EUIPO), was handed down on 11 October 2019, and has strong parallels with the Flying V case.

In the decision, the Cancellation Division considered the Firebird body shape, and decided that it “does not consider this to be significantly different from the normal style of electric guitars”. The decision also cited Gibson waiting for almost 50 years after the Firebird’s introduction before filing for the trademark in 2011 as a contributing factor.

In further parallels, the application to cancel this trademark came from Hans-Peter Wilfer – the founder and owner of Warwick and Framus – who was also the applicant in the Flying V case.

The decision also rejected Gibson’s assertion that even if a guitar’s shape is synonymous with a certain brand for professional musicians and enthusiasts, this is not sufficient grounds to use the shape as an origin indicator.

“Guitar body shapes may perhaps function as trademarks for a tiny club of expert and discerning guitarists, but not for the average amateur, who is the relevant public in assessing distinctive character in this case,” the court stated.

However, this ruling applies only to Gibson’s trademark of the Firebird body shape in relation to musical instruments. The company still has a trademark on the Firebird body shape in relation to a vast array of other areas, including clothing.

This EU decision also doesn’t have any impact on the trademarks Gibson holds for the Firebird shape in other territories, including the USA, as well as other more detailed trademarks for the Firebird guitar itself.

This latest development may not represent the end of the matter – the EUIPO first found against Gibson for the Flying V shape trademark in 2016, only for the guitar company to appeal firstly in 2018, and then again to the EU General Court in 2019.

We’ve approached both Gibson and Warwick for comment on this decision, and will update this story should they respond.

Read more about Gibson’s ongoing fight for its body shape trademarks in the USA here.