Quote Of The Day: Shelby Cobra And The Pursuit Of Distinctiveness Edition

by Edward Niedermeyer

Published: November 5th, 2010

quote of the day shelby cobra and the pursuit of distinctiveness edition

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.

#Cobra #Design #KitCar #Law #Shelby #Tuners

Edward Niedermeyer

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7 of 28 comments

DC Bruce on Nov 05, 2010

Well, the legal point here is pretty simple. The appearance of something is neither patentable nor copyrightable. What it does get is "trade dress" protection (e.g., the distinctive look of a Coca-Cola bottle). But a person wanting that protection has to establish the uniqueness of the thing being protected, which means that you have to get that protection before a bunch of people produce a product that looks the same, i.e. a copy. Either Shelby wasted his money here on legal fees, or his lawyers wasted their time if they took the case on a contingency.

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- Porschespeed on Nov 06, 2010
  
  DC Bruce, Perhaps you might want to look at the USPTO site before making FOX-esque statements like that. http://www.uspto.gov/web/offices/pac/design/definition.html It's formally designated a Design Patent. Which is commonly referred to in patent-law circles as an appearance patent.You are correct that the legal point is rather simple - however you are 100% wrong. Appearance is eminently patentable.
  
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- Ronnie Schreiber on Nov 06, 2010
  
  Porschespeed,
  
  Considering the bad joke that MSNBC continues to be, making jokes about Fox News says more about your own biases than about Fox. Christopher Hitchens, may God grant him a full recovery, once said while on the Bill Maher show that "Bush is stupid" is the kind of joke unintelligent people make. Folks who think themselves better than those who watch Fox News run the risk of the same assessment. It also ignores the fact that Fox News is the most successful cable news network in terms of audience size.
  
  I once successfully applied for and was granted a process patent without using an attorney. I also hold copyrights on all of my original embroidery designs, trademarks on some business names, and have made copyright agreements regarding articles I sell to TTAC etc. so while I'm not an attorney I have a personal interest in intellectual property.
  
  I don't know if any car companies bother to take out design patents in the US on the physical appearance of the car. I do know that they register copyrights, which if I'm not mistaken, is the same way owners of fine art control reproduction.
  
  I once got a cease and desist letter from General Motors because they claimed that my embroidery designs of Chevy cars violated their copyrights on the cars' designs. I told them that I had as much right to make pictures of their cars as Car and Driver does, and that by going after me and not going after traditional print publishers they risked losing their rights by being too selective in their enforcement of their intellectual property rights. In the event that they did take me to court, I said that I'd be happy to hold up one of my embroideries and a car magazine cover and ask 12 Americans to tell me which one wasn't a picture of a car.
  
  I never heard from them again.
  
  It seems to me that a design patent, which has a very limited life (it was something like 10 years back in the late 1970s) and can't be renewed, provides less legal protection than a copyright. The way the current law works, copyrights are almost infinitely renewable.
  
  The car companies also protect their IP by registering trademarks for their model brand names for all sorts of apparel, accessories and stuff like posters.
  
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- Ronnie Schreiber on Nov 06, 2010
  
  DC Bruce, you're right that this was a trademark case. Shelby was claiming that the appearance of the car constituted trade dress.
  
  As I pointed out to Porschespeed, you can get a copyright on an image. If that image happens to be of a car, your rights to the image extend to making actual cars just as drawing a cartoon of Lightning McQueen gives you the right to license toymakers to make toy cars.
  
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- Porschespeed on Nov 06, 2010
  
  Ronnie, As I never stated or indicated any alliance to MSNBC (since I have none and don't particularly care for them either) the suggestion that by me stating FOX is inherently inaccurate indicates far more about your biases than mine. As most of what one sees on FOX on any given day/show can be easily refuted with actual facts available from vetted sources (like, the IRS, DoJ, CIA, FBI, ad nauseum) I do tend to look down on those who don't bother to fact check because they can't deal with reality. Bush II was stupid. Calling a spade a spade, is just being honest. His old man was one of the least damaging presidents since Nixon, but I digress. "Design Patents" are 14 years in length. After that, all bets are (legally) off. Hence why you got away with what you did with GM. As someone who also holds a couple of patents, I am curious as to why you don't know the law. Back in the pre-net days, I drove to DC and hung out in Crystal City long enough to learn it. Sorry DET is a ghetto and not coming back in 3 lifetimes. I get that you are angry, but it is what it is.
  
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- Porschespeed on Nov 06, 2010
  
  Sure you can copyright an IMAGE. It is an IMAGE not an ITEM or a THING. You may be able to proffer such a pathetic cause in an entry-level Fed with a Judge you own but wait till it goes up a level. In the world of legality, definition of words is EVERYTHING, and, as such, your argument doesn't even exist. Tossed by any judge on the Fed Circuit level.
  
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Jerry Sutherland on Nov 06, 2010

This piece is on on the money-Cobras definitely lost their mystique around the beginning of the Reagan administration so this conclusion was inevitable. Here's a great example of how far this distortion of the Cobra name can go... http://www.mystarcollectorcar.com/2-features/stories/268-scary-rides-cobra-the-seven-second-quarter-mile-street-legal-machine.html

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