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.
That’s right, the Shelby Cobra has been officially copied to death, according to a recent ruling by the US Patent Office’s Trademark Trial and Appeal Board [in PDF here]. The board’s finding was complex, as proving “distinctiveness” takes a lot of doing, but the upshot is that so many Cobra replicas have been built, consumers don’t actually think of the original (Shelby-designed) Cobras when they see one. Had Shelby sued every single kit car maker since day one, he’d have the legal rights to his design, but in the years since 1968, the term “Cobra” has come to mean more than the specific Shelby Cobra 289 or Shelby Cobra 427 S/C. In fact, a survey used to try to prove the distinctiveness of the Shelby designs in the eyes of consumers may have even used a photo of a 289 to illustrate a 427 S/C… even the guy running the survey wasn’t sure. The moral of Caroll Shelby’s legal battle to own the rights to anything resembling an original Cobra: never stop suing the kit car makers. Or, just be happy with the millions of dollars and legend status you’ve already accumulated.