By on November 5, 2010

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.

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28 Comments on “Quote Of The Day: Shelby Cobra And The Pursuit Of Distinctiveness Edition...”


  • avatar
    V572625694

    If ‘Ol Shel had sued the first few replicants, the others might have been scared off. That’s the way the law is supposed to work, isn’t it?

  • avatar
    od2681

    I have lost a lot of respect for Carol Shelby.  All he wants to do is sue folks.

  • avatar
    PeriSoft

    Why get a Cobra? The Relentless Pursuit of Some Sex.

  • avatar
    obbop

    Was a Band-Aid ™ approach to the entire affair employed?

  • avatar

    it is a beautiful car and he deserves credit

    • 0 avatar
      Sinistermisterman

      Shelby had absolutely NOTHING to do with the design of the original body. The body was originally the AC Ace which Shelby then stuck a massive engine in and made the wheel arches a bit fatter.

    • 0 avatar
      Pig_Iron

      That machine has a lot of lineage, the Ace with the Bristol six, the 289 slab-side, the 289 FIA, the 427 S/C, the Daytona coupe. When I was in high school, the Cobra had been all but forgotten. One day it appeared in an magazine article I was reading, saying that it ‘might’ one day be a collectable. It had seen a surprising increase in auction prices.
      A little later the was a number of Cobra reminiscences, in buff books, about how so much performance had been lost to present generations compared to Cobra days. Then the kit car industry clones started to mushroom. By the late 80s early 90s it well underway.
      Few could afford a real one (Bill Cosby excepted). The Contemporary had a solid reputation and when on the beome Factory Five (IIRC). The Daytona still my fav, but I won’t say what mill I’d put in, as sacrilage puts one’s life at risk.

  • avatar
    aoliveiro

    As a car designer, who worked woth Shelby, I side with Carrol completly.  I don’t want my work simply copied because it is good.  I do think  the replicas devalue the original, and the work Carroll did.

    • 0 avatar
      mcs

      What about the work of John Tojeiro? Shouldn’t he get some credit too?

    • 0 avatar
      Detroit-Iron

      Trade secrets and other non-trademarked or patented intellectual property needs to be vigorously defended from the outset (i.e. you need to sue everyone all the time).  That is why only two people know the Colonel’s secret recipe.  If anyone were to try to sell fried chicken with the 11 herbs and spices then KFC could sue them successfully because they have shown that they have taken measures to protect their IP.

    • 0 avatar

      aoliveiro,
       
      I think that a persuasive argument can be made that Carroll Shelby and Shelby American have benefited tremendously from the replica makers. Had the car not been replicated, it would have faded into history, like the Cheetah. It was the replica makers, not Shelby, who popularized the shape of the “Cobra”.
      In any case, Pinin Farina had more to do with the shape of the “Cobra” than Carroll Shelby.
       
      Oh, and while we’re on the topic of ‘Ol Shel taking credit for things, according to someone who worked in the fabrication shop in Dearborn, Shelby had little to do with the creation of the 427 Cobra besides shoehorning a big block V8 into a 289 based Cobra. The original 427 Cobra was shipped to Dearborn because it was an abortion – it handled like crap and wasn’t particularly safe to drive. FoMoCo and Kar Kraft did most of the development work on the 427 Shelby, making it into the legend that it became.
       
      Carroll Shelby has had a bunch of accomplishments but the thing that he’s best at is self-promotion.

    • 0 avatar
      Uncle Mellow

      “What about the work of John Tojeiro? Shouldn’t he get some credit too?” Quote MCS
      Tojeiro designed the chassis , and Cobra clones don’t necessarily copy the (AC) chassis.
      Then again , AC copied the bodywork from a Ferrari anyway…..

  • avatar
    geozinger

    The way I see it, Mr. Shelby is screwed. The design aspect is especially hosed, as the car is from AC Cars of England, from their late 50′s sports car line (I forget what it was called). He had no design input whatsoever, the basic body of the Cobra variants was not his design to begin with. Ol Shel himself sold the rights to the name Cobra to Ford Motor Company in the late 60′s. He never seriously prosecuted anyone in the last 30 or so years who made a replica of his design and configuration. There’s no precedent that he tried to protect this particular car.
     
    I read elsewhere where Carroll Shelby was even suing the Shelby American Auto Club (SAAC)! These are the folks who are most responsible for keeping the reputation of Mr. Shelby’s creations alive and in good standing.
     
    I respect Mr Shelby for his past works & accomplishments, but his recent decisions have me wondering: What is he thinking?

    EDIT: Ah, crap, I see where sinisterministerman posted before I finished my post. And someone else mentioned John Tojeiro, too. Let’s mention Pete Brock and Dan Gurney while we’re at it too. A bunch of folks contributed to the Cobra 427 body, especially.

  • avatar
    LectroByte

    It’s an AC Ace.   It looks a Cobra without the flares.  Late 40′s/Early 50′s…   Don’t copyrights and patents expire a certain amount of time?

    • 0 avatar

      Patents, trademarks and copyrights are three different things.
       
      Patents are granted for a specific term (it used to be 17 years, now I think it’s 21) and cannot be renewed. In return for getting a patent/monopoly on the idea, the technology must be disclosed so that others can learn from it.
      Trademarks stay active as long as the renewal fees are paid.
      Copyrights used to have limited duration, but due to lobbying from the publishing industry, they can pretty much be renewed indefinitely.

      I’m a staunch believer in intellectual property (despite what Steven Johnson says in Where Good Ideas Come From) but infinite copyrights are not a good idea.

    • 0 avatar
      LectroByte

       
      Thanks Ronnie.  I guess “Cobra” would be the trademark, and that belongs to Ford now, and everything else seems like it should be in the public domain anyway.  Indefinite copyrights?  I remember hearing something about that, just seems crazy, but laws and sausage are two things you don’t want to see being made.

  • avatar
    Zackman

    Although I really don’t have much to say regarding copies – too late anyway, my favorite bit about the original Cobra was from a magazine review back in 1967 or 1968 regarding the inadequate brakes: “…Well, I didn’t buy the car to stop…” One of the most hilarious lines I’ve ever read! ‘Nuff said!

    • 0 avatar
      mrwright

      This is one of the machines I fell in love with many years ago–I had a miniature on my desk at work.

      My two favorite quotes as best I can remember:

      “It was a hand grenade waiting to go off.”

      And by an automotive writer who was buying one and naturally had to provide his ID to the salesman: “So, I pulled out my wallet.  We both knew it would be the last either of us would see of that document.”

  • avatar
    Ingvar

    So, what exactly in the design process did he try to trademark? The wheelarches? I mean, considering the 427 is an evolution of the A.C. Ace, a car that cribbed most of its styling cues from Ferrari. So, exactly what was Shelbys design input?

  • avatar

    Death by xerox is ugly, let’s have some jello to ease the pain

  • avatar
    stationwagon

    According to shelby what should an AC Cobra-like repli-car be called?

  • avatar
    DC Bruce

    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.

    • 0 avatar
      porschespeed

      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.

    • 0 avatar

      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.
       
       

    • 0 avatar

      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.

    • 0 avatar
      porschespeed

      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.

    • 0 avatar
      porschespeed

      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.

  • avatar

    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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