Shelby's latest lawsuit, who's next? - Page 6

Gatorac · #**101** (**permalink**) 12-26-2008, 05:26 PM

Quote:

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...

kris-kincaid · #**102** (**permalink**) 12-26-2008, 05:27 PM

Rick,

August 24th 1954 in an Austin Healey 100s. I missed it too, but it was about 20 years before my time.

Kris

Quote:

Originally Posted by Mark IV

I guess I missed that time when C.S. "broke the land speed record at Bonneville"

RedBarchetta · #**103** (**permalink**) 12-26-2008, 06:10 PM

Quote:

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 · #**104** (**permalink**) 12-26-2008, 06:21 PM

Quote:

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.

cobra25 · #**105** (**permalink**) 12-26-2008, 06:43 PM

Quote:

Originally Posted by jhv48

From what I heard, the Shelby booth at SEMA was fairly close to the FFR booth.

FFR had lots of crowds and interest in their cars, while the Shelby booth was fairly empty.

Coincidence? I don't think so!

I was there and that is not true at all!
In fact I do not remember seeing a FFR booth and I do remember a packed CS booth when he was there signing autographs.

I just read what the FFR guy wrote in his letter. I really don't mean to start anything, but at the SEMA show, the Shelby Cobras, GT-40s, engines, etc. were in the DenBeste booth and it was always busy. Please understand, I mean always. As for the Shelby Booth, they had a Shelby Parts booth with all of the late model Mustang stuff, that was a little less attended. I am sure that is not the booth FFR is referring to, right???

Three Peaks · #**106** (**permalink**) 12-26-2008, 07:27 PM

IMHO, the only reason the Old Man settled with SPF is he needed a source for manufacturing his cars since he was so far backordered he was in danger of going bankrupt from cancelled orders. I don't think it had a thing to do with royalties on the SPF coupe, but it may have had something to do with an agreement to share the originals designs/drawings with SPF of the Coupe in order to persuade SPF into building Shelby cars.

Since SPF had the manufacturing facilities and man power in South Africa, he was able to catch up his orders in a fairly timely fashion and probably for far less than other sources were costing him at the time.

Now what do you think would happen if SPF and Ole Shel' came to a disagreement over something like, oh, nonpayment by Shelby Enterprises or something like that? I'm pretty sure it hasn't been the first time....
Since Shelby only has SPF making his glass cars and Kirkham is making his tin cars, it's pretty safe to assume those two won't be in the lawyers glare until at least the bigger boys are taken care of.
If by some miracle FFR loses this suit (not likely), how long do you think before all the other smaller manufacturers fall, the side/cottage suppliers are gone, and everything Cobra is controlled by Shelby Ent. Inc?

Even as a scratch builder, I can't imagine what it might cost to source Shelby controlled parts and I don't really want to know. I'm with the majority that believes we should be supporting FFR in this fight for our own good and that of the kit car industry as a whole.

Maybe FFR could apply for some of that bail out money right behind GM, Ford, and Chrysler?

Bob

jmimac351 · #**107** (**permalink**) 12-26-2008, 07:31 PM

Quote:

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.

elmariachi · #**108** (**permalink**) 12-26-2008, 08:36 PM

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.

Quote:

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 · #**109** (**permalink**) 12-26-2008, 08:46 PM

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 · #**110** (**permalink**) 12-26-2008, 08:52 PM

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 · #**111** (**permalink**) 12-26-2008, 09:03 PM

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 · #**112** (**permalink**) 12-26-2008, 09:24 PM

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

elmariachi · #**113** (**permalink**) 12-26-2008, 09:32 PM

There have already been cases where courts ordered that use of metatags constitute infringment and where reparations had to be paid. As I recall, in one case the defendants had to surrender all their profits during the period they were using them.

Here are the current tags on the FFR site:

content="AC,Cobra,Cobra cars,coupe,427,FIA,kit,replica,factory five racing,fiero,mustang,5.0,kit cars,kit car,factory five,performance,racing,parts,automotive,restorati on,GTM,supercar,mid-engine car,corvette"

Don DePontee · #**114** (**permalink**) 12-26-2008, 09:46 PM

Wouldn't these types of lawsuits eventual brake down the effectiveness of any search engine to be able to perform it's intended design purpose? Will all search engine go away or become severely limited putting us in a position where rather than having a yellow pages type system which guides you with general words or topics we would have to know the exact name much like dialing 411. I don't know, maybe I'm not grasping the full picture on Meta Tags yet.
Don

elmariachi · #**115** (**permalink**) 12-26-2008, 09:54 PM

You have it right. Yes, it would change what a search engine will find. If the word "Cobra" is not on a site and you search the word Cobra only, it will likely not find that site. Its not disaster, but in the case of this lawsuit, CS must prove that FFR's use of these tags diverted business away from Shelby that otherwise would have been rightfully his. That could be tough to prove where "Daytona Coupe" is concerned. I am no lawyer, but they do have the word Cobra in their current tags. I sure thought the prior judgment said they could never use the "Cobra" trademark again.

vanoochka · #**116** (**permalink**) 12-26-2008, 11:25 PM

Quote:

Originally Posted by Don DePontee

Wouldn't these types of lawsuits eventual brake down the effectiveness of any search engine to be able to perform it's intended design purpose? Will all search engine go away or become severely limited putting us in a position where rather than having a yellow pages type system which guides you with general words or topics we would have to know the exact name much like dialing 411. I don't know, maybe I'm not grasping the full picture on Meta Tags yet.
Don

Actually, meta tags are only one of the many elements that search engines consider and weigh when ranking results. For example, Google considers links to be a very important factor in its ranking algorithm - more so than meta tags. However, if you go out and collect a bunch of links they consider frivolous, it can actually backfire and hurt your ranking. It's all very sophisticated and with enough checks and balances that the result of Mr. Shelby's lawsuit will not affect the effectiveness of any credible search engine.

I could also build a pretty compelling arguement that any judgement resulting in a few hundred dollars of royalties per car to be paid to CS would not cause the collapse of the industry. But, since I don't personally like the fact that he is litigating over this issue, combined with having witnessed the public burning of the heretic elmariachi at the stake, I think I'll save it for another time.

ronwin · #**117** (**permalink**) 12-27-2008, 12:07 AM

I cannot resist having a quiet giggle when I read all the speculation about what happened between SPF and CS. Stop right there, fella. You
MuSt ReSiSt PoStInG MuSt ReSiSt PoStInG MuSt ReSiSt PoStInG MuSt ReSiSt PoStInG MuSt ReSiSt PoStInG MuSt ReSiSt PoStInG MuSt ReSiSt PoStInG MuSt ReSiSt PoStInG MuSt ReSiSt PoStInG MuSt ReSiSt PoStInG MuSt ReSiSt PoStInG MuSt ReSiSt PoStInG MuSt ReSiSt PoStInG MuSt ReSiSt PoStInG MuSt ReSiSt PoStInG MuSt ReSiSt PoStInG MuSt ReSiSt PoStInG MuSt ReSiSt PoStInG MuSt ReSiSt PoStInG MuSt ReSiSt PoStInG MuSt ReSiSt PoStInG MuSt ReSiSt PoStInG MuSt ReSiSt PoStInG MuSt ReSiSt PoStInG MuSt ReSiSt PoStInG MuSt ReSiSt PoStInG MuSt ReSiSt PoStInG MuSt ReSiSt PoStInG MuSt ReSiSt PoStInG MuSt ReSiSt PoStInG MuSt ReSiSt PoStInG MuSt ReSiSt PoStInG MuSt ReSiSt PoStInG MuSt ReSiSt PoStInG MuSt ReSiSt PoStInG MuSt ReSiSt PoStInG MuSt ReSiSt PoStInG MuSt ReSiSt PoStInG MuSt ReSiSt PoStInG MuSt ReSiSt PoStInG MuSt ReSiSt PoStInG MuSt ReSiSt PoStInG MuSt ReSiSt PoStInG MuSt ReSiSt PoStInG MuSt ReSiSt PoStInG MuSt ReSiSt PoStInG

JKleiner · #**118** (**permalink**) 12-27-2008, 04:20 AM

Curious and completely ignorant re: metatags. How are the terms to be used as tags determined? Is it by the site owner; say XYZ widget & nutcracker emporium.com has tags of widgets, nutcracker, walnut. Were those tags decided upon and "connected to" the site by XYZ Inc., the search engine or ???
Are the terms elmariachi posted all of the tags for FFR? If so, where do grounds for a matatag suit come from? I don't see "shelby"; "cobra" is actually Ford property.
Educate me please.

Jeff

Jeff

mrmustang · #**119** (**permalink**) 12-27-2008, 04:21 AM

Quote:

Originally Posted by ronwin

I cannot resist having a quiet giggle when I read all the speculation about what happened between SPF and CS. Stop right there, fella. You
MuSt ReSiSt PoStInG

You would Ron, you would, or are you in the thicket with Lance on this one.

Bill S.

vanoochka · #**120** (**permalink**) 12-27-2008, 10:32 AM

Quote:

Originally Posted by JKleiner

Curious and completely ignorant re: metatags. How are the terms to be used as tags determined? Is it by the site owner; say XYZ widget & nutcracker emporium.com has tags of widgets, nutcracker, walnut. Were those tags decided upon and "connected to" the site by XYZ Inc., the search engine or ???
Are the terms elmariachi posted all of the tags for FFR? If so, where do grounds for a matatag suit come from? I don't see "shelby"; "cobra" is actually Ford property.
Educate me please.

Jeff

Jeff

Meta tags are included in the pages of a website and determined by the owner/contoller of the site. If you're curious, just select "Source" under the "View" pull-down on your browser's tool bar when on any website and look for a line of code that looks like the one in bold, below.

Sticking to your example, I pulled the tags from a site that sells a Hillary Clinton nutcracker: <meta name="keywords" content="nutcracker, Hillary Clinton, Hillary, hilary, nutcraker, democratic, hillary nuts, political, novelty, walnut, cracker, Fun With Nuts, Hillary Nutcracker, Clinton Nutcracker, Ann Coulter, nuts, political gift">

From the inclusion of "Ann Coulter", I'm guessing that the owner of this site believes that people interested in Ann Coulter would be likely to buy a Hillary nutcracker. To illustrate how little meta tags alone influence search results, I typed "Ann Coulter" into three different search engines. The Hillary nutcracker site didn't rank within the first five pages on any of the results. Who normally searches deeper than five pages?

In the early days of the web, meta tags were extremely influential in web page rankings. The search engines quickly adjusted to a ranking system based on other factors, more difficult for a website owner to manipulate.