Misconceptions

[REAL 1]

Originally Posted by Joe's Garage

You're missing the point as I knew you would, I'll dumb it down for you then, that ruling says -

Continuations have no acquired distinctiveness from all the other replicas, nor does it have acquired distinctiveness to be considered part of the original cobras of the 60's.

Therefore, BDR = ERA = Continuation = SPF = FFR = EM = Insert Replica Mfg Here = Kit Car

... you lose

Wow! You actually got sorta close.... but no cigar. I'm impressed though that you even got that close.

The essence of the ruling was that Cobras/Continuation Cobras or Shelby replicas of the original series have lost their distinctiveness in body shape which was the issue in that decision dealing with the shape/trade dress....

Thus we have the following noted by the court:

quite another to assert that purchasers and potential
purchasers view Cobra continuations or replicas, sold
primarily as kits, which employ the Cobra 427 S/C Design as
coming from a single source.....


Shelby lost his effort to stop other companies from making copies of the Cobra shape which by necessity included the original shape. The issue was shape/trade dress protection which required establishment of "acquired distinctiveness" as to the shape. Since ol' Shel sat on his ass for 30 years while companies prodigiously popped out fakes of his Shelby Cobra it was now too late to complain that the shape belonged to him.

Ergo, we have the following statement by the court....

The fact that Cobra replicas,
sold primarily as kits, which employ the 427 S/C Design,
have been sold by numerous third parties for more than
three decades, including between 2002 and 2009, precludes
us from drawing that conclusion. Accordingly, we find
applicant’s evidence based on media coverage of Mr. Shelby
and all of the Cobras not probative of the issue of
acquired distinctivenesss."

That's the story.

In fact, the courts protected the trade mark aspect of Shelby's claim and it is was ruled that the only company that can legally call or label their product a Cobra or a Shelby Cobra is Shelby American.

Uh oh. What now!