Shelby's latest lawsuit, who's next?

[Don DePontee]

Merry Christmas Brent, are you snowed in up there.
Merry Christmas Larry and by the way how is that snow plow working out on the front of your roadster
Don

[TXWOOD]

No attacks on anyone here, but if you think Carrol deserves a royalty payment for your replica, send him a check, I am sure he will accept it. IMO, I don't think the first guy who makes an engine swap into the body/frame of another car deserves a royalty check. Who gave Ford the rights to the AC car with a Ford V8 in it. If you put a Chevy motor in one of these, is it still a "Cobra" Replica? I don't know that Shelby ever put a Chevy motor in one, so does that exclude you from owing Shelby a royalty check. Can the first guy who ever put a different motor in a body/chassis come back and claim that was his intellectual property and now everyone who puts a different engine,trans, rear end in some other body / chassis now owes him a royalty check? I don't think Ford or Shelby has ownership of any rights in an engine swap into a car, that is just hotrodding. Your opinion may vary and that is alright with me.

[Boostedsnake]

I think the Ac Cobra and the story haved been almost forgotten if we entisuast havent been around?

Perhaps someone should pay us?

[elmariachi]

Just to clarify my prior royalty comment I made:

- Notice I separated Shelby's property (as is defined by the law or in this case the outcome of the lawsuit) from the Cobra, for obvious reasons. In the case of the Cobra it has been decided by the courts that the body design is not distinct, thus he is not due a royalty. Unless you market it as a "Shelby" Cobra replica, in which case I suppose he will sue.

- I also wrote either a royalty OR consent.

I am not suggesting that you and I mail a royalty for our cars to Carroll Shelby. What I am offering for discussion with respect to the lawsuit is manufacturers in this sport need to be sure they are 100% square before they start producing rather than after. Anytime you go into business and you use a design or property of another (Shelby, Ford or otherwise) you should expect that if you fail to acknowledge the creator (via a royalty or via consent) you have opened yourself up for litigation. If you create derivative works (meaning you derive your product from that belonging to another) then you have an even bigger issue on your hands that could involve theft of an existing design. Either way, you have the choice of resolving it up front or resolving it after the fact. The latter is always more expensive, just ask Microsoft. Again, I do know the full history of Shelby's actions and comments as they pertain to his claims of ownership.

I do have a dog in this fight because I have invested in a replica and may invest in a business related to this hobby. But if we all have to live in fear of lawsuits from Shelby, then replica ownership may be the extent of it for me.

[Gatorac]

Originally Posted by elmariachi

What I am offering for discussion with respect to the lawsuit is manufacturers in this sport need to be sure they are 100% square before they start producing rather than after. Anytime you go into business and you use a design or property of another (Shelby, Ford or otherwise) you should expect that if you fail to acknowledge the creator (via a royalty or via consent) you have opened yourself up for litigation.

Just put aside the emotion of this issue for a moment. The points that elmariachi makes are valid and interesting. What did the existing replica manufacturers do to make sure they where "square" with any trademark issues regarding these cars? Did they do anything or did they just decide to make a replica because it had been done before so there must not be any issue with it?

Please don't jump my Shlt. I am not taking sides with CS here. But, how many of us have taken are hard look at things from the other side here?

How much does the old guy have to do in the day to day operations of the companies with his name? Perhaps the management of those companies are doing whatever they can to gain competitive advantage. Lots of people here say "if only CS makes Cobra replicas then not many people will be able to afford to buy one" as an argument. The fact that there are a lot if people that may want and not be able to afford your product are not usually a very important aspect of a business plan. The issue you are concerned with is are there enough people that want your product that can afford it. Is it realistic to think that once CS dies that all this will go away? Somehow I don't think so. Isn't there some Italian guy named Enzo that is still producing cars long after his death?

Why is it that profit is associated with greed. Who here knows the real financial situation of the companies producing the 4000 series cars? Didn't we see a few years ago the CS enterprises was not producing a profit? Profit is not a dirty word. It's a requirement for a business to remain in business.

Perhaps I'm wrong and someone on here has had a conversation with the guy where he said that he personally wants to sue the replica companies to get more money.

I know, I know, I have a BDR blah blah blah. I've had 2 FFR's too, Blah blah blah. That doesn't mean crap. I had to assume that the manufacturers of the cars I purchased had done their due diligence on any trademark issue. Didn't we all?

I'm sure the reason FFR is the first target is they are the company with the most resources. If CS wins against them, all the other replica manufacturers will give in pretty quickly.

Discuss...

[jmimac351]

Originally Posted by Gatorac

Just put aside the emotion of this issue for a moment. The points that elmariachi makes are valid and interesting. What did the existing replica manufacturers do to make sure they where "square" with any trademark issues regarding these cars? Did they do anything or did they just decide to make a replica because it had been done before so there must not be any issue with it?

That would be a question for Dave Smith but as I understand it the courts have ruled against Shelby on the trade dress thing so it should be moot now, right? (I like saying "moot"). Did they contact Shelby before they started producing cars to ask if it was ok with him? Who knows. Would you ask permission to do something you thought you had the right to do?

Re: SPF... It's interesting that the claim of damage to a brand is occurring because of replicas when apparently the exchange of money through licensing suddenly stops that same damage from continuing??? Which is it?

If Shelby really wanted to put heat on FFR he would totally change his strategy. FFR claims to not want to be associated with the Shelby brand. What if Shelby approached other replica manufacturers and proposed some "authentication" process that resulted in some nominal fee? Include them in a registry category of some sort. Issue certificates signed by Shelby for $$$ a piece. It would create revenue for Shelby. He would be embracing his enthusiasts, etc. The courts say Shelby doesn't have a claim. He's concentrating on spite and burning money through litigation instead of making money.

[Michael C Henry]

If It wern't for the replicaters I wouldn't have my car. It's annoying that people who haven't seen my car hear the term Cobra replica and they start talking about their Mustang they used to have, or the person (usually a gal) who asks "what year of Corvette is that".

[Don]

Did anyone notice......details

The Court Clerk's date/time stamp has the year of 2000, rather than 2008, or the last 0 is missing part of the digit ? Or, if I am mis-reading sure looks like a 0

http://www.iptrademarkattorney.com/c...ctory-five.pdf

[Don DePontee]

It's a bad stamp print, if you go all the way to the bottom you will the correct date there.
Don

[Dingocooke]

I think we all suspect that Shelby would put his name to one of Walmarts trolleys if there was a buck or two to be earned; he's endorsed his share of replica cobras in the past (for money).

I think its a sad end for somebody who should be a universally respected racing icon to be pursuing legal action. In his dotage, he should be enjoying the adoration of his fans, and also basking in the massive compliment of all the cobra and daytona clones that should be his crowning epitaph; but what will we most likely remember??

Sad, so very sad, but for Shelby really, as we all know he's not going to get anywhere with this.

Such a shame.

[ZOERA-SC7XX]

If not for the early kit car industry, Shelby would never have had the opportunity to produce and sell the 4000 series cars. Look how he repays the industry. Then he gets in bed with SPF or whoever is willing to pay his ransom. He's made millions on his own kits and now wants more. This greed will ultimately become his REAL legacy.

[SP01715]

It took a whole seven pages before SPF was brought into the thread. I was waiting for it...

[ZOERA-SC7XX]

Didn't he sue SPF before they agreed to pay the ransom?

[RedBarchetta]

Originally Posted by ZOERA-SC7XX

Didn't he sue SPF before they agreed to pay the ransom?

SPF did the smart thing and settled by agreeing to pay a license fee/royalty for each Coupe sold. Probably gets passed to the consumer anyway, just like everything else in life. I don't know the details and I don't NEED to know the details. All I do know is that it apparently works, as SPF appears healthy and sells cars, and the 'Ol Chicken Farmer doesn't hassle them anymore (at least no one here as reported anything).

One would think that FFR (another Daytona Coupe manufacturer) would realize that route is far cheaper than litigation? To each his own. Call it ransom or extortion or THE LAW. Whatever it is, it's business and this sort of thing goes on a heck of a lot more in entirely different industries and lines of work than most people realize.

I'm not saying you have to like it, and I'm not siding with CS...I can't stand the guy from a business perspective. But back in the day he made kick ass cars and I like driving one of them (replica or otherwise).

I wish the folks at FFR well and hope they can resolve this one. The hobby needs FFR to remain at a healthier state. Absent of them wouldn't kill the industry, but it would be a tough, tough blow.

-Dean

[gt500bill]

Originally Posted by RedBarchetta

. Call it ransom or extortion-Dean

Ok, ransom and/or extortion. Oh and if you havent heard, the $helby emblems, stripe kits, and cobra emblems are drying up as we speak. He is trying to cut off the replica's from both ends.
Call Branda or any other supplier and ask for a stripe kit or emblem and see whats happening.

[elmariachi]

I have looked through the judge's orders from 2002 and I do not see where Shelby lost anything with respect to trade dress of the Daytona. Don't jump my ass...if I am wrong then post the printed facts here. In the new lawsuit he is asserting a valid design trademark for the Daytona likeness issued by the USPTO.

Originally Posted by Gatorac

Just put aside the emotion of this issue for a moment. The points that elmariachi makes are valid and interesting. What did the existing replica manufacturers do to make sure they where "square" with any trademark issues regarding these cars? Did they do anything or did they just decide to make a replica

Exactly. Everyone just jumped on the bandwagon thinking the matter was dead. And maybe it was. But not for CS and I think that is why he will not go away nor will his successors. He has a complete list of every company paying them a license royalty, which means he also knows who isn't. And for Dave Smith to go on the record in public and act surprised about another suit and say the things he purportedly said in post #41, is likely adding fuel to the fire. If this chicken farmer is as whacked out and boggus as everyone here contends, then the LAST guy to piss off is the one that cannot be reasoned with.

I truly believe the successors will be worse. They will inherit a dairy farm with one cow, and its dead. CS is approaching this from a fickle, bitter, angry point of view. Others will look at it purely as business and their litigation will come around a whole lot more often than every 5 or 6 years.

[jmimac351]

Dave Smith claims this:

"FFR's focal point of the Consent Judgment related to Shelby's claims of trade dress (the shape of the car) which obviously meant a great deal to us. When Shelby filed the litigation in 2000, he ran several statements which claimed he would obtain a $10 million damages claim and shut down FFR's production of our Roadster. We were quite prepared to litigate this to the end, and based on our expert report (and a later Judgment in the Superformance litigation that declared that Shelby's claims for trade dress were not protectable) we undoubtedly would have prevailed. That being the case, Shelby agreed under the Consent Judgment to Dismiss With Prejudice all claims related to the trade dress of all FFR kits including, but not limited to the Roadster AND the Type 65 Coupe. For those of you who, like me, aren't necessarily schooled in the legal jargon, "With Prejudice" means that the claims are forever dismissed and can never be raised again."

I wonder what is controlling is this case - the judge's order or the patent issued apparently after the fact? I hope a lawyer will speak up before I hurt myself.

[elmariachi]

Yes, a lawyer's input would be interesting. Here is what I found from the lawyer who represented Shelby in the FFR case (his words, not mine):

"Under the final injunction entered by U.S. District Judge Rya Zobel, Factory Five is barred from any direct, indirect, or derivative use of the Shelby and Ford trademarks. Factory Five is required also to make specific disclaimers and to inform customers at the time of sale that Factory Five cannot use or authorize use of the trademarks on its products. In addition, the court declared the validity of the Plaintiffs' trademarks against Factory Five's claims of abandonment. Factory Five entered into a separate agreement, which is under seal, to resolve other claims made by Shelby."

If it is determined that Shelby owns a valid trademark on the Daytona, that wouldn't bode well for FFR.

[jmimac351]

I find it hard to believe that the Shelby's lawyer claims Shelby has a beef. We need input from impartial lawyers. Where's Judge Andrew Napolitano?

[Don DePontee]

Actually the one point that bothers and worries me the most is the point of the Meta Tags. Bill (Mr. Mustang) has explained a few things to me about the use of the Meta Tags and with a quick search on Google it seems very apparent that if Shelby wins on this issue it could set a president that would cripple all of the search engines in the World Wide Web. Think about that one.
Don