[H]ad the court properly appreciated how to play a LES PAUL guitar, the court would not have granted summary judgment for Gibson. At a minimum, the functionality of the alleged Gibson trade dress features presents fact issues for trial.
In other words, a Gibson looks like a Gibson because it sounds like a Gibson -- and in trademark law, functional features are not granted trademark protection. (If they're novel, you may be able to get a patent, of course.)
I don't know as much about guitars as these authors, I guess, but back in the day when I used to play bass guitar on my Gibson SG 
copy! -- I sure knew that it wasn't playing like the real thing. But it did look enough like a Gibson and, what I found most valuable, had a guitar-proportioned fret board unlike the long Fender basses that were most popular but which I found harder to play. So on the one hand I, as the consumer, was driven by functionality. On the other hand, I wanted a bass that looked like a real big-boy bass. Considering the fairly low quality of my instrument, it's hard to imagine that the product configuration had much if anything to do with how it sounded. At the end of the day, and on a quick read of the excerpts, I might agree with the TTAB here.
UPDATE: On the other hand, the issue isn't how my Acme guitar's sound was affected by its shape, it's how the Gibson was -- that's what drives the functionality argument. So perhaps I should reconsider after I read the whole opinion and the article.
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