Do you consider Tokai guitars counterfeits?

Tokai-SA · 2015-01-14T21:31:19+00:00

As far as I'm aware a counterfeit is a guitar, watch, bag, etc, that attempts to defraud the consumer into believing they're buying a product made by Nike, Rolex, Gibson, Fender, Gucci, etc, when in fact the product is not made by one of those companies. If a guitar has the Gibson or Fender name/decal on the headstock and it's not made by Gibson or Fender then it's a counterfeit or a fake...correct? Just like a watch that has the name Rolex on the face, or a bag that has the name Gucci on the bag, or a Nike T shirt has Nike printed on it when in fact the product is not made by Rolex, Nike or Gucci...then the product is a counterfeit/fake. Comments.

studmissile

Interesting, but I would be surprised if the law seeing something clearly labeled "Tokai" legally regarded it as counterfeit, keeping in mind future imports of cheaper brands could also be regarded as illegal if they had a 'similar shape"(and the economic impact of that?). Remembering this in a country where the vast majority could not possibly afford a "Gibson" even a "Epiphone" for that matter!

Wildaker

studmissile wrote Interesting, but I would be surprised if the law seeing something clearly labeled "Tokai" legally regarded it as counterfeit, keeping in mind future imports of cheaper brands could also be regarded as illegal if they had a 'similar shape"(and the economic impact of that?). Remebering this in a country where the vast majority could not possibly afford a "Gibson" even a "Epiphone" for that matter!

Having dealt with commercial lawyers in several countries, nothing would surprise me!

For example, if the shape is considered (in SA) to be Gibson's property then a copy of that shape could well be regarded as "counterfeiting" (if the legislation that covers this is anti-counterfeiting legislation rather than more conventional IP protection). And if Gibson wins one case it has precedent that it can use to move rapidly against other suppliers of similarly-shaped instruments. I'm not saying that will happen—merely suggesting a way in which it might unfold...

Most counterfeiting cases involve products that most people can't afford (which is a key reason why they are likely to be faked, when you think about it).

singemonkey

I agree that the law works in mysterious ways, its wonders to perform. But it seems highly unlikely from a common-sense perspective that, even if a court rules for Gibson, that they'll declare them "counterfeit" as per Gibson's laughable slander - as opposed to in violation of copyright or trademarks or whatever bogus case they manage to slip through. The dictionary and the law do agree to a certain extent.

Well. I'll tell you one thing. It'll be sad to live in the only country in the world where a kid can't buy a strat copy. All those shameless rip-offs would only be available to everyone else in the whole world. But at least we could hold our heads high, knowing that we've made a great moral stand. ?

singemonkey

I guess I can sort of see why Gibson is upset by people using body shapes that their company designed before any of them were working there. They'd consider that kind of thing beneath them.

I'll just leave this here:

studmissile

If the Judge in matters like this, is a guitarist, the case will be very short lived!

studmissile

Mike wrote
studmissile wrote Interesting, but I would be surprised if the law seeing something clearly labeled "Tokai" legally regarded it as counterfeit, keeping in mind future imports of cheaper brands could also be regarded as illegal if they had a 'similar shape"(and the economic impact of that?). Remebering this in a country where the vast majority could not possibly afford a "Gibson" even a "Epiphone" for that matter!
Having dealt with commercial lawyers in several countries, nothing would surprise me!

For example, if the shape is considered (in SA) to be Gibson's property then a copy of that shape could well be regarded as "counterfeiting" (if the legislation that covers this is anti-counterfeiting legislation rather than more conventional IP protection). And if Gibson wins one case it has precedent that it can use to move rapidly against other suppliers of similarly-shaped instruments. I'm not saying that will happen—merely suggesting a way in which it might unfold...

Most counterfeiting cases involve products that most people can't afford (which is a key reason why they are likely to be faked, when you think about it).

Doesn't that open a further case of a unhealthy monopoly in a developing market?

Most counterfeiting cases involve products that most people can't afford.... hence cheaper "no name brands" to avoid tradmark infringement and supply the market in a legal manner.

Tokai-SA

Mike wrote
PJH wrote The original question was "Do you consider Tokai guitar counterfeit"

The definition in the dictionary is: "made in imitation so as to be passed off fraudulently or deceptively as genuine".

Tokai puts their own name on the headstock.

Therefore the answer is No, they do not make counterfeit guitars.

They make copies or maybe "replicas" (a name that I prefer).

Case closed.
Case very much open, I'm afraid.

The definition in your (or any) dictionary is irrelevant. If this is a legal issue being raised in SA than it's the definition under South African law that counts. And I don't—like, it would appear from the comments, everybody else—have a sufficiently in-depth knowledge of that to answer the original question.

I certainly consider many Tokai guitars to be shameless rip-offs, even though they can also be very, very good musical instruments. Whether that is legally right or wrong in this jurisdiction, is another matter entirely.

"Analogous" examples from other jurisdictions are, frankly, unhelpful, as is the repeated stating that they were not the first and a very far from being the only shameless rip-offs on the market. As are comments seeming to suggest that the high quality of the instruments somehow diminishes the rip-off aspect.

I do know that South Africa has been beefing up its anti-counterfeiting laws, since the country is a major dumping-ground for counterfeit goods, and it could be that Gibson (or its representatives) has spotted a crack that could trip Tokai (or its representatives) up. If that's the case and if the Gibson side is correct, then Tokai guitars are—in South Africa—counterfeits; if not, then they are not. That's how the law works. Whether any of us "consider" them to be counterfeits is pretty much irrelevant...

I have a reasonable knowledge of counterfeit laws in SA, in fact all SA law.
Tokai being classified as counterfeits is not debatable, they are not counterfeits.

Gibsons patents expired 14 years after they were registered, that's a few decades ago.
Gibson do not have trademarks for their body shapes in SA.
They have two trademarks both registered in SA in 1975.
The SG "Standard" scratchplate shape and the 'bell shaped truss rod cover'.

I don't think Gibsons legal team have spotted any cracks...I'll tell you why I say that.
In my founding affidavit to Gibson I mention the Fender Trademark Applications case in the USA that started in 2004 and ended in 2009...(btw, practically 100% of guitarists around the world don't even know about this case).

I can mention the Fender Trademark Case in my founding affidavit but the law doesn't allow me to actually provide proof/evidence, unless they (Gibson) themselves bring it up in their affidavits, then I can by law supply the proof when I reply in my following affidavit.
In my founding affidavit I mention that in 2004 Fender (FMIC) applied for trademarks on the Stratocaster, Telecaster and P-Bass shapes in the USA.
I mention that the trademark applications were opposed by 17 of the worlds biggest guitar companies including Tom Anderson, John Suhr, ESP, Peavey, etc, etc...I mention all 17 opposers.
I also mention that in 2009 the United States Trademark Trial and Appeal Board ruled in favour of the 17 "opposers" on the grounds that after 50 years the shapes are now considered "generic" in the guitar world.
Thus Fender did not get trademarks on their body shapes and any guitar company in the world can make guitars with those shapes.

The head of Gibsons legal department in his "answering affidavit" replied to my mention of the Fender Trademark case saying, "this is unsubstantiated heresy and no evidence of such a case exists".

Well, that's odd, on the 31/3/2009 Gibson themselves published the result of the Fender Trademark case on their (Gibsons) website, yet the head of their legal department didn't know such a case existed? ???

Here's the full transcript of the Fender Trademark Trial...this is now introduced into my evidence because they brought it up and claimed it doesn't exist.

https://www.dropbox.com/s/9cwi5n6f4cbsdhv/Fender%20Trademark%20case%20USA.pdf?dl=0

Guitarists who own all sorts of different guitar brands are fine with the fact that Fender the most iconic guitar company in history were refused trademarks by the USA Trademark Council, but the same decision shouldn't apply to Gibson in South Africa?

The Fender Trademark Case is the "precedent" you speak of.

NorioDS

Tokai SA wroteWell, that's odd, on the 31/3/2009 Gibson themselves published the result of the Fender Trademark case on their (Gibsons) website, yet the head of their legal department didn't know such a case existed? ???

? Hahahahahahaha! That's really funny. I just had to say ?

Wildaker

Interesting @Tokai SA, thanks.

@singemonkey: you seem to be confusing business with ethical consistency...

Wildaker

Tokai SA wrote Guitarists who own all sorts of different guitar brands are fine with the fact that Fender the most iconic guitar company in history were refused trademarks by the USA Trademark Council, but the same decision shouldn't apply to Gibson in South Africa?

The Fender Trademark Case is the "precedent" you speak of.

Sorry, I missed that—personally, I'm fine with all the knock-offs, and have been for over 40 years. But it's really irrelevant whether guitarists (such as me) are "fine" or not, surely? It's a matter for the SA judiciary, which may or may not take US trademark legislation and jurisprudence into consideration. I can (and do) think Gibson is being very silly, but that doesn't mean that it—at a commercial and legal level—is.

Must be extremely annoying for you, though...

Tokai-SA

Mike wrote Interesting @Tokai SA, thanks.

You're welcome.

Tokai-SA

Mike wrote
Tokai SA wrote Guitarists who own all sorts of different guitar brands are fine with the fact that Fender the most iconic guitar company in history were refused trademarks by the USA Trademark Council, but the same decision shouldn't apply to Gibson in South Africa?

The Fender Trademark Case is the "precedent" you speak of.
Sorry, I missed that—personally, I'm fine with all the knock-offs, and have been for over 40 years. But it's really irrelevant whether guitarists (such as me) are "fine" or not, surely?

Must be extremely annoying for you, though...

I agree with you, in the end the High Court will decide the outcome of this case, hopefully they take into account the past cases in the USA because a case like mine doesn't exist in SA legal history.
In fact, not too many lawsuit/trademark cases exist in legal history in any country.

Gibson VS Elgin (Ibanez) in 1980...the famous "Lawsuit" models we read about today.
The lawsuit was based on Ibanez using the Gibson headstock shape and other 'marks', nothing to do with body shape because Gibson had no trademarks on the body shapes.
Ibanez changed the shape of the headstock and the case never gets to court, Gibson drop the lawsuit.

Gibson VS Fernandes in Japan in 2000.
In it's Judgement the Tokyo High Court ruled in favour of Fernandes citing Gibson failed to protect or trademark their body shapes between the years 1968 to 1994/7, or between 1952 and 1994/7, and in that time the shapes have been used by hundreds of other guitar companies and the shapes are now considered generic.

Gibson VS PRS...we know the result of that one as well, Gibson lose.

The Fender Trademark Case.

Wildaker

Tokai SA wrote The most annoying thing thus far...
The same head of Legal in response to me saying selling Tokai guitars is my only means of making a living...his response was, that's like a "Child Pornographer saying he can't make money selling Child Pornography any more". >☹

Whoa! Now that's actionable, I reckon, if any third party was in a position to hear or read it.

Tokai-SA

Just by the way...

Gibson do not have a trademark in the USA for the 335 body shape.
It was refused 18 years ago by the United States Trademark Office.

17 guitar companies including Fender & Gretsch, Sadowsky, John Suhr, Peavey, Schecter, Collings, ESP, have now (2014) filed a cancellation 'Opposition' to the original application.

http://ttabvue.uspto.gov/ttabvue/v?pno=86168793&pty=EXT

Banditman

I don't think anyone's mentioned this little gem yet....http://i640.photobucket.com/albums/uu128/kip0909/Untitled1-1.jpg?t=1253843941

Banditman

Norio wrote
Banditman wrote Reminds me of Harley in the '80s first trying to sue anyone for making a cruiser with a v-twin, then trying to patent the sound of the engine.
They did get a trademark on the sound. And it is quite a different sound.

I do believe there's a difference between the classical instruments and electric guitars.

The latter are bought for status. That's pretty key.

It's a critical selling point for Gibsons & Fenders.

If their only selling point was quality, they'd have tanked by now. Way too much quality competition at lower price points.

That said, I'm not a status-buying kinda guy. I'd rather go for value than status.

Which is why I love my Ibanez eye-gougers and would definitely get a Tokai over a Gibson. (Especially after actually playing a Tokai once - thanks Joel!)

Harley actually withdrew that patent application after about 6 years of legal action with no result. Part of their problem is that the sound is created partly by the common crankpin design of the motor, which isn't something they own exclusive rights to.

If we go by design and purpose (what the item was made to do) then there's really no basic difference between classical / acoustic and electric guitars apart from the fact that the former have simply been around for so long - before good documentation became commonplace and the law got involved - for there to be room for any one manufacturer to really have a viable case that they were being copied. Ovations excluded. One 6 string acoustic is pretty much like another, as one single cut 6 string electric with 2x humbuckers is pretty much like another. If - next to the shape - the only argument for trademark protection of the Gibson design was "status", then good luck to them in getting that to stand up in court without a prepaid judge. If we can take emotional attachment to our instruments out of the picture, then a guitar is merely a manufactured item. Whether mass produced as Gibson and Fender do or hand-built in small quantities, it's a manufactured item for commercial sale.

There will be a fair degree of commonality in appearance between competing products - cars, guitars, motorcycles, microwave ovens, flat screen TVs etc. It's one reason why a non-enthusiast can't tell (and can't care) about the differences between a Strat and any S-type, or between superbikes, or TVs, or cars, or aircraft, and it's the blind spot of the enthusiast that they cannot understand why the whole world doesn't see the significance. Given their consistent track record of failing to convince a judge on the body shape patent argument, good luck to Gibson. Perhaps they're better off spending on QC and R&D.

singemonkey

Kudos to Lance for fighting this tooth and nail. Given the refusal of courts in the biggest guitar markets in the world (USA and Japan) to acknowledge these "rights" of the big guitar companies, I feel pretty sure that this action here was cynically undertaken on the basis that the courts would be unfamiliar with the issues, and that they'd meet no determined resistance from the local guitar industry.

If their bullying approach to competition wins, it won't be because no one stood up to them.

beardedmoose

Mike wrote
PJH wrote The original question was "Do you consider Tokai guitar counterfeit"

The definition in the dictionary is: "made in imitation so as to be passed off fraudulently or deceptively as genuine".

Tokai puts their own name on the headstock.

Therefore the answer is No, they do not make counterfeit guitars.

They make copies or maybe "replicas" (a name that I prefer).

Case closed.
Case very much open, I'm afraid.

The definition in your (or any) dictionary is irrelevant. If this is a legal issue being raised in SA than it's the definition under South African law that counts. And I don't—like, it would appear from the comments, everybody else—have a sufficiently in-depth knowledge of that to answer the original question.

I certainly consider many Tokai guitars to be shameless rip-offs, even though they can also be very, very good musical instruments. Whether that is legally right or wrong in this jurisdiction, is another matter entirely.

"Analogous" examples from other jurisdictions are, frankly, unhelpful, as is the repeated stating that they were not the first and a very far from being the only shameless rip-offs on the market. As are comments seeming to suggest that the high quality of the instruments somehow diminishes the rip-off aspect.

I do know that South Africa has been beefing up its anti-counterfeiting laws, since the country is a major dumping-ground for counterfeit goods, and it could be that Gibson (or its representatives) has spotted a crack that could trip Tokai (or its representatives) up. If that's the case and if the Gibson side is correct, then Tokai guitars are—in South Africa—counterfeits; if not, then they are not. That's how the law works. Whether any of us "consider" them to be counterfeits is pretty much irrelevant...

the legal definition of the word "Counterfeit" is as follows.

Counterfeit
To falsify, deceive, or defraud. A copy or imitation of something that is intended to be taken as authentic and genuine in order to deceive another.
A counterfeit coin is one that may pass for a genuine coin and may include a lower denomination coin altered so that it may pass as a higher denomination coin.

Since Tokai Guitars are not Falsifying, Defrauding nor Deceiving... Your Argument is invalid.

Wildaker

beardedmoose wrote the legal definition of the word "Counterfeit" is as follows.

Counterfeit
To falsify, deceive, or defraud. A copy or imitation of something that is intended to be taken as authentic and genuine in order to deceive another.
A counterfeit coin is one that may pass for a genuine coin and may include a lower denomination coin altered so that it may pass as a higher denomination coin.

Since Tokai Guitars are not Falsifying, Defrauding nor Deceiving... Your Argument is invalid.

Well, no. Quoting West's Encyclopedia of American Law (which is itself an interpretation and summary of complex and various legislation) when attempting to refute a case under South African jurisdiction has no validity at all.

Even quoting South Africa law would have limited usefulness as it is the High Court's interpretation of that which will count. And that's at the heart of my point. It doesn't really matter whether guitarists here regard Tokai guitars as counterfeit or not, or whether they feel they can back this up through their interpretation of various dictionaries they may own or find quoted on the Internet; what matters is how the High Court sees it based both on the letter of current South African law and the judiciary's understanding and interpretation of precedent.

chris77

Mike is right. That is unfortunately the crux of the situation. No matter what we believe to be right or wrong or what the law dictionaries say, it will be up to the judge to decide the case based upon his/her understanding of how the law applies to this case. Let's hope he/she has enough common sense to rule wisely.

Whatever the court decides though, this remains a proper dick move by Gibson imo. I wonder if the larger guitar playing community is aware of this case. Had they tried this in the US, Europe or Japan the internet would have been ablaze...

For me personally, saying I won't buy a new Gibson because of this is a bit like saying I won't share a table with Ted Nugent. Both might be true, but the likelihood of either happening is so remote in any case that it isn't much of a statement to make. (Besides, neither would really care what I do anyway.)

So, does anybody have any idea of another way to show my distaste with them and their agents in SA?

« Previous Page Next Page »