Originally Posted by Paul F
Judge Walsh further wrote:
"Furthermore, we find no meaningful
distinction between what applicant often refers to as a
continuation, on the one hand, and a replica, on the other
hand. Both applicant’s “continuations” and the third-party
replicas are being sold principally in kit form. It is
evident that both are intended to replicate the original
1960s Cobras, including the Cobra 427 S/C."
and
"In 1992, Shelby began to produce “continuations” or
replicas of the original Cobras, including the Cobra 427
S/C, primarily in kit form. A kit typically includes a chassis and body,
but the purchaser is then required to assemble and complete
the car with a transmission and engine and possibly other
parts. Mr. Shelby identified the replicas of the Cobra 427
S/C with the designation CSX 4000.
Shelby has sold the Cobra replica kits for $50,000 to
$150,000."
and
"It is one thing to recognize the legendary status of
Mr. Shelby and the original Cobras, including the 427 S/C,
and 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. 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 distinctiveness." ,,,
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