Well, I am a little fuzzy as to what constitutes a "Guitar"
Is a "guitar" just the body? or does it include the neck and head?
I've been under the impression a guitar includes everything. But maybe I'm wrong and in legalese a guitar shape only counts the body.
Also, at what point is the "shape" not infringing on a copy protected item? Would it be enough to make the body an inch wider? or the angles of the shape a degree more or less than the original? Maybe the cutaways have a little more of a curve to them ... at what point is the shape different enough? Does scale length factor in? What about how many frets? Control layout? Inlays?
When I see a Dean, I dont have to examine it closely to know it a Dean. You can tell its a Dean from afar.
I see a ton of guitars out there that look like an SG, V, Explorer, LP. I own an ESP that looks alot like a LP. Even the headstock is shaped very similar. Maybe that could be copy infringement too.
Hell, how many strat look-a-likes are out there?
Gibson needs to worry about Gibson. I have read too many quality complaints online from Gibson owners, not just haters who dont own one, but people who actually went out, shelled out the money to own a guitar with the Gibson logo on it and within a year have problems with the finish coming off or an electronics issue (that last one happened to me on my SG within a year). They should concentrate on improving the quality of their instruments to merit the much higher cost and not so much on smaller companies who care enough to do it better.
Sorry for the wide ranging rant. Just had to let that out.
It's not about the whole guitar; it's about those features which a guitar manufacturer has decided to trademark (also, it's not a copywrite; that is something different).
What can and cannot be trademark protected can get fuzzy and it is up to the the USPTO to grant trademark protection once an application is submitted. A manufacturer can't just call anything a "trademark" because they feel like it. It has to be approved. Gibson has trademarked the Les Paul shape and the Gibson headstock design (though Gibson was REALLY late in trademarking the Les Paul shape. They didn't do that until 1993). The trademark lawsuits are about those elements which are trademarked, not necessarily the whole guitar. However, as the legal wranglings proceed, the question usually does come up as to whether a customer could confuse one guitar with another. So, the distinctions do get blurred quite a bit.
(As an aside, the issue with the "lawsuit era" Ibanez copy of the Les Paul was not about the body shape. It was about the headstock shape. Gibson hadn't trademarked the body shape, yet. Also, Gibson never got around to actually suing Ibanez; though, the threat was there).
The other thing to keep in mind is that trademarks must be defended by the trademark holder. There is no authoritative body independently monitoring all manufactured items for possible cases of trademark infringement. If the trademark holder does not choose to challenge a potential infringement, nothing will happen. The Catch 22 is that if a trademark holder does not challenge a trademark infringement, and the design has become more or less universal in the mean time, the trademark holder may actually lose a challenge if they do eventually decide to sue. So, as much as I don't like to see it, either, Gibson kind of has to challenge potential infringements, or they may lose their likelihood of succeeding in the future.
That is kind of the situation with Fender (though, not exactly the same). The thing about the Stratocaster serves as a lesson, and I'm sure Gibson was paying attention! Fender HAS tried to sue others over using the Strat shape. But, they waited too long. The courts determined that the Strat shape had become so ubiquitous and universal that it no longer uniquely identified a Fender guitar. Perhaps, if Fender had trademarked the design and challenged copies much earlier, things would have been different.
Another thing is that a trademark has to be focused on aesthetics, not function. So, as far as I understand it based on my personal study of these things, aspects like control layout cannot be trademarked (or a least successfully litigated) since they are functional aspects, not merely "trade dress". (Trade Dress is a subset of trademark, and is really what the whole matter is about.)
As for how much different a shape has to be to avoid trademark infringement? Well, that's what all the lawsuits are about! From what I've seen, the shapes have to be pretty much identical to be determined as infringement in court, but that doesn't mean Gibson couldn't sue, anyway, just to see what happens.
