Shelby's latest lawsuit, who's next?

[Don DePontee]

The following is a response from Dave Smith posted a couple of days ago:

Guys,

I’m sorry that this had to come out in a public forum, but now that it has, I feel an obligation to provide you guys with a few answers.

Many of you may or may not know the full history of this nonsense, but for those of you who don’t I should say that we (FFR) were in a long battle with Shelby over the name “Cobra” and the shape of the car (referred to as trade dress) . That legal fight was resolved in 2002 by way of a Consent Judgment in the Federal Court. Under the Consent Judgment, FFR agreed that it would not use the word Cobra or the Cobra Snake design which was a no-brainer for us since we weren't using it anyway. Imagine spending hundreds of thousands of dollars to litigate over a mark which we not only did not use, but never wanted. FFR has always fostered its own brand and good will and we would NEVER want to be confused (no matter how inadvertently) with any other person or company, especially Shelby.

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.

So, despite this, Shelby (who apparently is also not schooled in the legal jargon) now has sued FFR again! (related primarily to the trade dress of FFR's Type 65 Coupe), in direct contravention to the Consent Judgment (which is a final order of the Federal Court!).

Where did this come from?

I don’t know. BUT I think it happened at SEMA. We were just across from Shelby’s booth and we had Farra’s World Record Breaking Bonneville Coupe on display. The traffic at our booth was busy non-stop, while there were crickets in the Shelby booth just across the way. I personally think that made old Shel angry and he basically told his lawyers to sue us regardless of any Court Orders, facts or whatever. That is just my belief, but only Shelby knows the reasons. I also think he included Langley and Bill here on the forums as a way to harass and try and damage our business. We don’t own or operate the customer forums and the forums don’t make and sell a competitive product to Shelby and in my view isn’t violating the law in any manner. With respect to Langley, he is just a small shop who, to my knowledge, builds perfectly legal FFR’s and is being bullied by Shelby.

I also think this action comes from the fact that we are the only company objecting to Shelby’s current USPTO application for a trademark on the shape of the " 427 S/C Cobra " , an application that is being evaluated right now at the USPTO (United States Patent and Trademark Office) and that we (FFR) are objecting to for obvious and truthful reasons. I believe Shelby’s attempt to get a trademark on the Coupe was denied once back in the 90's and he re-submitted it recently, may have gone thru.

In the end, I don’t believe Shelby's lawsuit will go anywhere. While I am a strong proponent of morality and good will toward man, especially on the eve of the most Holy night of the year, Shelby may force our company to finally go on the offensive and seek damages against him for malicious prosecution, contempt of court, and for being a really mean person (I made up that last one). Seriously though, right is right and I was raised in a Navy family to believe that our system of laws is just and fair. I think this has gone too far.

We have won against Shelby in every effort we have ever made. Our lawyers (with our permission) even helped a group of FFR kit car competitors defeat Shelby in his attempt before the 1st Circuit Court of Appeals to overturn the lower Court's ruling that the 427 S/C was not a protectable trade dress. This will be no different and I think, only serves to permanently cement Shelby’s legacy not as the great hero he was way back when, but rather, as one of the most litigious, mean spirited and money-grubbing guys of all time.

Carroll Shelby is an old man. I ask all of you not to be caught up in self-righteous anger but to join me in feeling sorry for the guy. I wish him no ill will and sincerely hope that he will spend the remainder of his days surrounded by people who love him (as compared to those wanting to cash in from his legacy) and enjoying the positive things in life, rather than plotting with his lawyers to do in his next victim.

I wish all of you Safe, Healthy and Happy Holidays. All of us here at FFR are doing just fine and this legal action is frustrating, no doubt, but hardly worth the worry. Right is right and in the end good always prevails when committed to the truth. We are all looking forward to a great New Year and I will try and keep you guys updated via our website, but did so here on this forum at the request of customers who reported on the recent California lawsuit post.

One more thing. Don't let this negative energy affect all of you. What has been built in this amazing FFR community by all of you is very very special. The stories are many, the fellowship and stoke is genuine. You might laugh at this last statement, but very soon you guys will see that this small, humble community will become an inspiration to an entire Nation. I have big plans you see and we are just getting started!

Shelby is the past. I'd rather be talking about news that our GTM is the second fastest 0-60 mph street car ever tested in the history of Car and Driver Magazine. Cooool.

Dave Smith

[jmimac351]

Originally Posted by Dave Smith

We have won against Shelby in every effort we have ever made. Our lawyers (with our permission) even helped a group of FFR kit car competitors defeat Shelby in his attempt before the 1st Circuit Court of Appeals to overturn the lower Court's ruling that the 427 S/C was not a protectable trade dress. This will be no different and I think, only serves to permanently cement Shelby’s legacy not as the great hero he was way back when, but rather, as one of the most litigious, mean spirited and money-grubbing guys of all time.

I don't drink the Kool-aid but I agree with Dave. It's tragic how such an opportunity for goodwill among enthusiasts the world over has been completely squandered. I guess at least he's still got the announcers at Barrett-Jackson to pay him homage.

[elmariachi]

Considering the above letter and the vomitous Abraham Lincoln patriotic email I received from Dave Smith, I am so glad I didn't buy a FFR. Shelby might be an old man filing frivolous lawsuits, but the Smiths are even worse. They have built wealth and prosperity from Shelby's designs and seem amazed that Shelby would sue them. And in a fit of insanity, they recall the prior judgement against them as an FFR victory (????). This lawsuit will likely be dismissed because Shelby let his trademarks lapse, but FFR is no different Ole Shel. They have their hands in the Cobra cookie jar and are pissed/delirious/incensed/insulted that Momma might say no.

[Don DePontee]

Dave Smith is protecting the rights of all replicators out there to build replicas of something that Shelby kicked to the curb garbage can decades ago spending millions of dollars to in the process. Last time around FFR did win a landslide judgment and protected Superfomance when Shelby went after them buy giving them over two million dollars worth in discovery document for free. And yes this is even protecting the right for the Hurricane to continue producing kits. Thank God FFR is protecting that cookie jar filled with all of the cookies out there, even yours, otherwise Shelby will shut everyone down over night.
Don

[Ron61]

Just a thought and no opinion on the impending lawsuit. But I wonder if Shelby and his bunch have ever considered what would happen to them if they could shut down all of the other replica makers. For one thing, most or many people would prefer a Shelby or Kirkham Car, but just don't have that kind of money. He isn't going to gain anything if he is the only Replica maker left in business as it will only mean that many people that love the cars will have to go without one. In fact his sales would most likely drop as he would immediately up the price even more for the improved profit. If I could afford anything I want, I would much prefer one of the Originals as the new ones are over priced I feel and in California it would be hard to get one of the few SB-500 numbers to register one anyway. So to sum what I am trying to say up, if Shelby shuts down all replica makers except himself and the Kirkhams, I feel his business will soon follow many others. Also these are not the kind of cars that you trade in and get a new one ever year or so.

Ron

[JKleiner]

Originally Posted by jmimac351

I guess at least he's still got the announcers at Barrett-Jackson to pay him homage.

Being that they've drug across the block nearly every other vehicle he was even remotely associated with I'm waiting to hear "Now up for auction is the actual taxicab that Carroll rode in coming here from his hotel tonight. I'll open the bidding at 1 million dollars!"
Some SOB will buy it too...

Jeff

[jmimac351]

Originally Posted by elmariachi

... vomitous Abraham Lincoln patriotic email I received from Dave Smith... This lawsuit will likely be dismissed because Shelby let his trademarks lapse, but FFR is no different Ole Shel. They have their hands in the Cobra cookie jar and are pissed/delirious/incensed/insulted that Momma might say no.

That's quite a mix of collectivist liberalism ya' got going on there, Elmariachi. No more Yes We Can!??? Lo siento mucho. To the best of my knowledge, Dave Smith isn't going around suing people; although, I must say that I've seen some FFR builds where a cease and desist letter was probably warranted.

Merry Christmas, Elmariachi.

[Maurice Johnson]

elmariachi,

Your car is a copy of a ?????????? --- what. Not looking for a fight on Christmas morning, just clarification

[TButtrick]

Originally Posted by elmariachi

Considering the above letter and the vomitous Abraham Lincoln patriotic email I received from Dave Smith, I am so glad I didn't buy a FFR. Shelby might be an old man filing frivolous lawsuits, but the Smiths are even worse. They have built wealth and prosperity from Shelby's designs and seem amazed that Shelby would sue them. And in a fit of insanity, they recall the prior judgement against them as an FFR victory (????). This lawsuit will likely be dismissed because Shelby let his trademarks lapse, but FFR is no different Ole Shel. They have their hands in the Cobra cookie jar and are pissed/delirious/incensed/insulted that Momma might say no.

Wouldn't Hurricane have their hands in the same jar? It could have just as easily been them or any other manufacturer named in the lawsuit. It amazes me how some people can write things like this and actually know where the ON switch is on their computer.

Originally Posted by mr bruce

This place should give the Old Grouch a little fairer treatment than the KooLaid drinkers. Thanks for keepin'it civil, Jammer. that said, let the courts deside this one also.

Amazing. Let all us kool-aid drinkers know which side of your mouth you're speaking from there Mr. Bruce.

[kayakjack]

[quote=Ron61;907598] if Shelby shuts down all replica makers except himself and the Kirkhams, I feel his business will soon follow many others.

I agree. Also, (in my opinion) if not for the replica makers there never would have been a revival of interest in the Shelby Cobra. Maybe a niche "car club" of of owners of originals. The replicators kept his name alive giving it market value. He would be a footnote otherwise.

In fact (in my opinion) if not for the replica cottage industry, he probably never would have had the opportunity to sell the curent line of Shelby Mustangs with Ford. Who would have cared? Who would have remembered him.

In my opinion he owes the replica industry a debt of gratitude. Instead, he sues (almost) everybody. He doesn't get it. He doesn't have enough time left above ground to get it.

Jack

[elmariachi]

Originally Posted by TButtrick

Wouldn't Hurricane have their hands in the same jar? It could have just as easily been them or any other manufacturer named in the lawsuit.

Yes, Hurricane would be guilty as well. But Hurricane isn't who Shelby has chosen to sue at the present time now is it? I don't think I singled out FFR, but this thread is about the lawsuit against them, not Hurricane. And if Hurricane were sued, my opnion wouldn't change. Frankly, I was shocked when entering this sport a few months ago to learn that ALL of these companies were building replicas and not paying royaties. Of course, I did not know Shelby had abandoned his rights to the design. If anything Hurricane is MORE liable because they pulled their car from a real CSX, as opposed to the FFR...who knows where that body came from. Maybe it was intentionally "altered" so as to avert future liability.

Originally Posted by TButtrick

It amazes me how some people can write things like this and actually know where the ON switch is on their computer.

It amazes me how some posters misconstrue other posts in order to pick a fight, especially when another person's views don't align with their own. Merry Christmas.

[TButtrick]

Originally Posted by elmariachi

Considering the above letter and the vomitous Abraham Lincoln patriotic email I received from Dave Smith, I am so glad I didn't buy a FFR. Shelby might be an old man filing frivolous lawsuits, but the Smiths are even worse. They have built wealth and prosperity from Shelby's designs and seem amazed that Shelby would sue them. And in a fit of insanity, they recall the prior judgement against them as an FFR victory (????). This lawsuit will likely be dismissed because Shelby let his trademarks lapse, but FFR is no different Ole Shel. They have their hands in the Cobra cookie jar and are pissed/delirious/incensed/insulted that Momma might say no.

Yup... you're right. After reading this again, I don't see how I could have thought you singled out FFR or misconstrued the intent of your post.

[496fe]

Ever try to buy a Lamborghini or Ferrari replica? Don't bother. Lamborghini/Audi and Ferrari/Fiat put all the manufacturersd OUT OF BUSINESS. Every one of them got sued for hundreds of thousands or millions of dollars. They were told they could fight the legal battles or they could surrender their molds and destroy their inventory.

I can't believe ol' Carroll has been so accomodating all these years.

B.

[fostereast]

Originally Posted by elmariachi

Considering the above letter and the vomitous Abraham Lincoln patriotic email I received from Dave Smith, I am so glad I didn't buy a FFR. Shelby might be an old man filing frivolous lawsuits, but the Smiths are even worse. They have built wealth and prosperity from Shelby's designs and seem amazed that Shelby would sue them. And in a fit of insanity, they recall the prior judgement against them as an FFR victory (????). This lawsuit will likely be dismissed because Shelby let his trademarks lapse, but FFR is no different Ole Shel. They have their hands in the Cobra cookie jar and are pissed/delirious/incensed/insulted that Momma might say no.

Factory Five is a great bunch of people, Including Dave Smith. Unless you own a Shelby, you should be happy that one kit car company has the funds, and business savvy to keep this cottage industry open for business.

[mrmustang]

Originally Posted by elmariachi

when entering this sport a few months ago to learn that ALL of these companies were building replicas and not paying royaties.

I think this in itself is part of the problem, you have only been around "this sport" for a "few months", you have not spent the time to do any research on the subject. If you had done a little research, you would know that Shelby abandoned the Cobra and in several interviews (both in print and now available on video) even praised the replica makers for "keeping the fire burning" (his words circa 1987/1988 interview with Car & Driver or Road & Track reprinted in several sister publications over the years). If you did a little more homework, some a little closer to modern times, you would know a lot more and understand where the rest of us are now coming from.

I'll leave it at that for now, the moral of my post is, before you spout off with an opinion so strong, you are better off to do a lot of research on the subject and not make rash posts based on your extremely limited knowledge on the subject.

Here is wishing you well.

Sincerely,

Bill S.

[VE4MM]

Originally Posted by Dave Schwaab

As I read this latest suit, it seems to be aimed more towards the Daytona Coupe as his intellectual property. I remember his put down of Pete Brock for the original design of the coupe; now he wants to add his name to the SPF Coupe, as updated by the same Pete Brock, as the new CSX9000 series continuation car. Of course, he'll also add a bunch of bucks to the price tag as his profit.

Years ago, he lost interest in Cobras and let his trademarks and patents lapse while he pursued other interests. Now he wants it all back, with interest! To me, he is just a bitter old man. I feel sorry for him. The real damage to his reputation, and his legend, is being done by himself! While I respect what he and the team accomplished 40 years ago, I have lost all respect for him now.

Well spoken sir!

[elmariachi]

Originally Posted by TButtrick

Yup... you're right. After reading this again, I don't see how I could have thought you singled out FFR or misconstrued the intent of your post.

You did misconstrue the intent of my post. Entirely.

Originally Posted by mrmustang

you would know a lot more and understand where the rest of us are now coming from. Bill S.

You would know a lot more if you would recognize that this thread involves a collective set of opinions, and that we don't all have to share "Where you are coming from." Before you spout off against someone you don't know, maybe you should recognize that these posts are not intended to be personal. My posts are aimed at commenting on the lawsuit, yours are now aimed at assailing me for posting something you think to be unfounded or in disagreement with you. I have done enough research to back up my comments, and prior to posting I was well aware of the history. While I may have only joined the sport of Cobra replica ownership a few months ago, I have been involved with Ford, Shelby, these cars, lawsuits and contract law since 1982. I am qualified to state my opinion. But we are all impressed that you know more than me and were tough enough to call me out on it.

[vanoochka]

Originally Posted by Dave Schwaab

Years ago, he lost interest in Cobras and let his trademarks and patents lapse while he pursued other interests. Now he wants it all back, with interest!

I once searched for tm registration on a product name and found that although it was registered, the mark had lapsed. Even so, outside counsel insisted that we get a letter of release from the company that held the original (now lapsed) tm. It was no big deal, so we paid them a small fee and received the release.

Another time, we wanted to use a product name that was never registered, but was in use by another company, and had been for some time. Again, outside counsel advised us to get a release from that company. This time, it was a big deal. When that company refused to give us a release to use the mark, counsel advised us to come up with a different name.

So, at least one IP attorney's advice says that even if a tm has lapsed, or has been in use yet never registered, you are at risk in using it. This attorney (initials GR, for those who know) is generally considered the leading expert on IP law in silicon valley.

I know next to nothing about IP law, but the above situations show that it at least possible that CS is getting legal advise stating that, even though the mark(s) has lapsed, he still has a legitimate claim to it (them).

HAPPY HOLIDAYS TO ALL OF YOU AND YOURS, AND BEST WISHES FOR A SAFE AND PROSPEROUS 2009!

[Cobrabill]

Elmariachi-exactly what part of"Shelby gave up his trademark/patent(what have you)back in the 60's" don't you understand?.This is not opinion-this is case law.The Chicken-sh!t farmer is wrong.Completely,100 percent,both morally & legally.

The comparison with Ferrari & Lambo is a non-sequitur as those companies have actively protected there patent/trademarks.

[elmariachi]

Originally Posted by Cobrabill

Elmariachi-exactly what part of"Shelby gave up his trademark/patent(what have you)back in the 60's" don't you understand?.This is not opinion-this is case law.The Chicken-sh!t farmer is wrong.Completely,100 percent,both morally & legally.

Please show us where he forfeited the claims he is making in the lawsuit.