Over the weekend I penned a screed calling baby boomers to task for embracing retro style over the the values that made the revolutionary cars of their era so revolutionary [editor’s note: there’s nothing like having a carburetor on your 35 year-old motorcycle magically fix itself to inspire faith in old, simple machinery]. The new New Beetle was square in my crosshairs over the weekend, but it’s hardly the only example of boomer retro-madness. Another favorite for nostalgic boomers are the legendary muscle cars that marked the high-water point for Detroit thunder, and this feverish demand combined with limited original runs have run the prices of famous muscle cars into the Barrett-Jackson stratosphere. It’s also inspired a legion of knock-off and replica manufacturers, who see huge money to be made by aligning supply with demand. They, in turn, have inspired a number of huge lawsuits from the original creators of the limited-edition legends. Carroll Shelby’s prolific legal battles against creators of Cobra replicas have given him the reputation of being a guy who never met a buck he didn’t like, and now GM has joined the Shelby legacy, suing Mongoose Motorsports for daring to produced replicas of the 1963 Corvette Grand Sport roadster.
GM is suing for trademark infringement, claiming the iconic brand has been irreparably harmed by the ersatz sports cars, which the automaker says copy the Corvette’s design — curve for curve.
Of course, this is a bit misleading. GM isn’t concerned that replicas of the ’63 Grand Sport hurt the value of the Corvette name… after all, Duntov Motors is officially licensed to produce “authentic” 1963 Grand Sports. The problem is that Mongoose’s $90k replicas severely undercut the ridiculous $189k charged by Duntov for a “real replica,” of which four are built each year.
Nor is the problem that Mongoose builds cars that look, feel, perform like the original. After all, it’s not as if Mongoose has acquired the original GM tooling to create an exact replica. Indeed, Mongoose admits that:
Improvements are made continually on both the Grand Sport and GTP to further improve performance on the track and street. The GS frame, designed by Altair engineering, one of the largest aircraft-engineering firms in the country replicates the original GS design, utilizes the suspension from 88-96 Corvettes, with fully adjustable front and rear coil over shocks.
But GM says the copy is too close for comfort. “This is not an homage,” says GM’s Tom Wilkenson. “If we don’t enforce this, we can lose control of our various trademarks.” This despite Mongoose’s clear disclaimer that:
All manufacturers names, symbols and descriptions used in this website are used for the purposes of identification only. It is neither inferred nor implied that any item offered by Mongoose Motorsports is a product of, authorized by or in any way connected with any vehicle manufactured by General Motors. The Trademarks Corvette, Stingray, Chevrolet, GM and the Corvette emblems are Trademarks of General Motors Corporation
Regardless, Mongoose does sell a Corvette Grand Sport emblem for about $100, which almost certainly violates GM’s trademarks. But the car? As Carroll Shelby’s recently-failed lawsuit against Cobra kit maker Factory Five seems to prove, there’s only so much intellectual property to a limited-edition race car that can be protected. You can stop people from using the name and official livery, but at a certain point, kit cars and replicas are a fact of life that money-grubbing patent holders have to learn to live with.
Besides, the question of brand damage is an important one. Does it actually hurt the Corvette name to have a tier of unlicensed replicas that sell 1963 racing technology for $90k instead of $190k? Or does it, just possibly, expand the brand, giving (somewhat) regular folks a chance to drive a legendary car when they retire without winning the lottery? After all, a vast array of Cobra replicas hasn’t stopped the originals from bringing in obscene auction prices.
Besides, GM isn’t in the collector car value-protection business, it’s in the car selling business. And what’s better for the brand, allowing (relatively) affordable replicas of legendary Corvettes to serve as free advertisement for the brand, or to be in the news for attempting to keep ’63 GS replicas to four units per year of production? By all means, force Mongoose to license official badging (or keep it out of their hands), but don’t punish them for building the Corvette brand by democratizing the boomer nostalgia that GM otherwise can not seem to make work for them.
Absolutely, GM needs to back off. Factory Five notes that the body lines for the latest version of their Cobra replica (Mk4) is ever more faithful to the original. It’s great that enthusiasts have an option in the Mongoose Grand Sport, and the evolutionary improvements over the original makes it that much better. Check out the lines on the coupe! http://www.mongoosems.com/
I don’t think GM would have a problem with it if it was licensed. What would stop me from making cars that look exactly like todays Prius? What would stop a company like GM or Toyota or name your company from copying the designs, making a slight modification, and doing the same. That is why trademark law exists.
My understanding is that GM cannot discriminate against who infringes on their trademarks. If they allow someone to infringe, why not allow others to infringe and have some build a 25k C6 ZR1 look a like. If GM doesn’t protect the trademarks, it won’t have them.
Also, there is a difference between this and the Shelby lawsuit. The reason Shelby lost is because of a previous agreement between Shelby and Factory Five.
I would fully expect this lawsuit do end in a licensing agreement with the company making the product, unless GM has a previous licensing agreement with another company which makes them the sole licensee for the grand national vette.
“After all, a vast array of Cobra replicas hasn’t stopped the originals from bringing in obscene auction prices.”
Exactly. Old ‘Shel was never the best wrench – but he has/had promotion down to an art form. Never understood anybody paying that kind of cash for something as plebian and mass-produced as a Cobra, but different strokes and all that.
Your missing the point here. Shelby doesn’t make any money when these cars go to auction. But, like in my other post, what would stop someone from taking a car that is being built today and doing the same thing? What would stop another car company from doing the same thing? They are protecting their trademark like they should be.
I do understand the point. GM has a valid case involving ‘replica’ trim pieces – registered trademark. Failing to defend that trademark, the trademark will fall into ‘public domain’. XEROX did that quite deliberately.
However, as long as the ‘replica’ car being sold is not an identical copy, or being sold as the ‘real thing’, it’s rather simple to demonstrate the significant differences between Mongoose’s product, Duntov’s replica, and the original Gran Sport.
GM’s lawyers can try (and perhaps succeed) intimidating Mongoose. Legally though, they’re shooting blanks and are being truly offensive by even rattling that sabre.
IF I don’t sell it, OR purport it to be genuine, I can machine an exact duplicate of anything I want and there’s not a damn thing any corp can legally do to me.
Sure, when the Chinese copy a Honda mm for mm, there’s a case. If it just looks like a Honda but the measurements are different, the engine design is different, there’s simply no case.
You are wrong about this. If you make the design too close, you can be sued and you will lose. That is what patents and trademarks are for. Having the same body shape is enough for them to get sued and for Mongoose to lose.
You should also know that you don’t have to match something exactly for a lawsuit and for you to lose. Lookup lawsuits against RIM for visual voice mail and the relay tower in Canada. In those, they were coping a concept.
If I make a watch that is an exact duplicate of a Rolex, and sell it to a customer as a Rolex, I have committed fraud.
If I make a 100% replica of a Rolex and sell it without purporting it to be genuine, then Rolex has a counterfeit goods claim.
But, dozens of mainline watch lines have watches that look 99% like Rolex product. Rolex doesn’t bother to sue, there’s little chance of winning. And, since they are a little different, no law being broken.
Read the decision in McBurnie, I have it linked in my earlier post.
Different products are litigated differently, but I can cite plenty of lawyers and judges that see the Mongoose case exactly as I do with regard to replicars. McBurnie did get a cease and desist, but it was on the thinnest of law.
GM has a valid case against Mongoose for the unauthorized badges.
But the cars? Only if Mongoose is rolling them out as copies, or as originals, which they aren’t.
I understand what you are saying, but they are also calling the car a Mongoose Grand Sport. From the picture on the website, it looks like the cars come with the Corvette Grand Sport badges.
But, taking a different approach to this, what are the complications of GM trying to license this out to another company? I mean, if GM licenses this out to a company to make replicas, what are the impacts of GM’s (or name your car company) ability to license products if anyone can make them? Take this to clothing, hats, cups, plates, neon lights etc. It would seem illegal if I could sell a shirt with a Toyota Tundra on it if I just simply say that this shirt is not officially licensed.
I guess you don’t remember the TV show, Miami Vice? Ferrari sued Mcburnie Coachcraft for building fake Daytona Spider body kits that were installed over a Corvette chassis. Remember the black Daytona that Don Johnson drove in Miami Vice? It was a fake built by Mcburnie.
If you build something that rips off the basic style of your competitors product — the way the original Camaro ripped off the original Mustang — that’s acceptable. Copying something part for part is not acceptable. What would stop the Chinese from building and selling fake BMW’s?
Sorry, but anyone making an argument for building unauthorized replicas is an idiot.
See Ferrari S.P.A. ESERCIZIO Fabriche Automobili E Corse v. Carl ROBERTS, d/b/a Roberts Motor Company (http://cases.justia.com/us-court-of-appeals/F2/944/1235/) which is the appeal of Ferrari SpA Esercizio Fabbriche Automobili E Corse v. McBurnie Coachcraft Inc.
While Ferrari was able to get a cease and desist, they really stretched the letter and spirit of the Lanham act to do it.
Read the dissenting opinion, it’d be the ruling Ferrari would get today, and likely the one GM will get as well. Notice they don’t bother trying to sue kitmakers anymore? Sure, the white shoe law firm will send a C&D letter, and that’ll will scare people who don’t want to spend the money to fight the big corp.
Now, if Mongoose sends it out the door in full livery, there might be a way to stretch Lanham. If they sold it to somebody and told them it really *was* Gran Sport, then GM has a case.