Marketing and all things related

Trademarks are a huge part of marketing, so I was intrigued by the newest Guitar Hero lawsuit.  Gibson Guitar Corporation and Activision (NASDAQ: ATVI) have had a licensing deal for several years wherein Activision has used Gibson guitar images in its incredibly popular Guitar Hero and Rock Band guitar simulation video games.

If you're not familiar with Guitar Hero, the video below from South Park will wrap the entire phenomenon up in under 1 minute (warning, as you'd expect from South Park, this video does contain potentially offensive language).

So after years of what appeared to be a harmonious relationship, Activision decided not to renew the licensing agreement with Gibson for future Guitar Hero games.  In response, Gibson pulled out a patent the company has held since 1999 for a concept for guitar simulation extremely similar to Guitar Hero (although the word "video game" is never used in the 5,000 word patent document), and now, Gibson is suing Activision claiming Activision's Guitar Hero has infringed on Gibson's 1999 patent.  Gibson is also suing a number of large retailers such as Wal-Mart, Target and Toys R Us for selling the video game, which sounds ludicrous to me (of course, business law is not my expertise, but it sounds like a stretch).

The timing is highly suspicious on Gibson's part.  Why did they never mention this patent before?  On the other hand, Activision should have done their due diligence to ensure the concept for the new game they were creating, Guitar Hero, was free and clear of any intellectual property trademarks or patents.  Isn't that one of the main steps of new product development? 

Sounds like both parties to this lawsuit are guilty of something.  Who will win?  I have to give this one to Activision since Gibson waited so long to file the lawsuit.  What do you think?