Gibson loses Flying V trademark case in EU court

Ruling in EU General Court finds the Flying V body shape has “no demonstration of distinctive character”.

Gibson's Flying V was reintroduced in the late 1960s

UPDATE: 

Warwick boss Hans-Peter Wilfer has released a statement on the outcome of the Flying V case:

“We are very pleased with this decision and I would personally like to thank the work of our legal team in helping us reach this outcome,” remarked Mr. Wilfer. “Based on this landmark decision, Warwick will continue its longstanding tradition of providing its customers with well-crafted original and timeless guitars and basses.”

ORIGINAL STORY

Gibson may currently be taking legal action to protect its Flying V body shape in the US, but the company has lost the rights to trademark the shape in a judgement handed down by the Second Chamber of the EU General Court, which declared that, “there has been no demonstration of distinctive character acquired,” by the Flying V body shape and, “that when the application for registration of the challenged mark was filed, the V-shape did not depart significantly from the norms and customs of the sector.” 

Advertisement

The case dates back all the way to 16 June 2010, when Gibson filed a patent application for the Flying V with the European Union Intellectual Property Office (EUIPO), which was initially granted. However in October 2014 Hans-Peter Wilfer, the owner of Warwick and Framus, challenged the registration of the mark in respect to musical instruments. 

In 2016, this case was heard by the EUIPO’s Cancellation Division, and Wilfer’s complaint was upheld, declaring the mark invalid in regards to musical instruments, and declaring that, “the applicant had failed to establish the distinctive character acquired by that mark in the European Union.” 

The three-dimensional body shape that Gibson tried to secure a trademark for in 2010

Gibson appealed and lost in 2018, and then took its appeal to the EU General Court, where a panel of three judges dismissed Gibson’s second appeal, and ordered them to pay costs.

In the judgement, the court declared that while the shape of the Flying V guitar “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 court also dismissed the notion that consumers only associate the V-shaped body with Gibson, declaring that, “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.”

The V-style Framus WH-1 model

The judgement goes on to confirm that by the time Gibson filed for the patent in 2010, the Flying V had become, “One possible variant of the many existing shapes.”

While this appears to now allow EU guitar makers to produce V-style guitars using the classic body shape, Gibson still has several other patents for the Flying V guitar in the European Union that are unaffected by this ruling, which refers purely to the shape of the body. 

Gibson also retains its trademarks for the Flying V body shape in other areas (including things like clothing, jewellery etc), just not musical instruments. Furthermore, Gibson also holds trademarks for the Flying V in some individual EU countries, and it still holds the US trademark to the Flying V body shape.

Guitar.com has approached Gibson and Warwick for comment on this story, and will update it should they respond.

Advertisement