Shelby & Factory Five 2002

[ve4mm]

FACTORY FIVE RACING BEAT SHELBY:

It took three years and 1.3 million dollars in legal fees before it was over. The case was finally resolved Feb. 11, 2002 in Boston Federal court. The lawsuit was very complex and involved, with issues and facts that are better addressed in a book (it's in the works), rather than a newsletter. The bottom line is that it's all over!

The result was that Factory Five Racing kept the rights to make the shape of the car (including the Coupe and other designs), whereas Shelby and Ford kept the names (Cobra, 427, S/C etc). Both sides absorbed their own legal expenses and we all went our separate ways. We used to refer to our car as a Cobra Replica (like the rest of the planet earth). as a result of our agree ment, we are now referring to our kit as the 65 Roadster. We also just launched the Mark II version, which we're just calling the Mark II roadster. Design-wise, it's the same kit.

Behind the scenes we really felt that the names Cobra and 427 SC had become so generic over the years (with the proliferation of thousands of Cobra replicas) that there was little specific value in having to continue to fight for them. Moreover, we felt that despite claims by Ford or Shelby, the words are a small part of what has become an entire genre of American hot rods. The versions and styles of Cobra replicas are similar to the penomenon of street rods that replicate '32 Ford roadsters. Today, no single car maker or model can readily be identified as the definitive source of the product. Even Shelby American sells a kit that is manufactured by another kit car company (kirkham manufacturing has made their aluminum bodied kits for some time).

As it stands now, Shelby can never again contest our rights to produce the car kits. Shelby had originally sought 10 million dollars in damages from us and wanted the destruction of the tooling and molds used to build the Factory Five kits. Shelby said previously, in an interview with Automobile magazine's David E. Davis, that he would also seek $10,000 per vehicle from owners of all replicas (not just FFR). That is all over now, at least for Factory Five Racing. As of June 2002, Shelby is still pursuing similar legal action vs. Superformance. This is a losing fight for old Shel and we hope he realizes it soon.

With a clear path to the future, we want to thank personally the people who helped us make this effort tremendously successful. While we were forced to defend our rights in court, we still wish Mr. Shelby the best and hope that in time he comes to embrace and recognize the valuable and inextricable part that replicas have played in the Cobra story.

The Judgment - August 22, 2002 8:15pm

In the matter of.... CARROLL SHELBY LICENSING, INC., SHELBY AMERICAN, INC. and FORD MOTOR COMPANY vs SUPERFORMANCE INT'L, INC. d/b/a SUPERFORMANCE COMPLETE REPLICARS

Ford, Shelby Claim Against Replica Maker Dismissed
Ford, Shelby Claim Against Replica Maker Dismissed

Boston, Aug. 22 (Bloomberg) -- Ford Motor Co. and race-car designer Carroll Shelby's vintage 1960s Cobra sports car doesn't have a distinctive enough shape to stop a supplier from selling kits to make replicas of it, a federal judge in Boston ruled.

Ford and Shelby's company, Las Vegas-based Shelby American Inc., sued Superformance International Inc. in December 2000, saying the supplier of sports car kits was illegally using the design of Cobra cars built by Shelby in the 1960s. U.S. District Court Judge Rya Zobel dismissed Ford and Shelby's counterfeiting claims, saying that Shelby couldn't establish the Cobra shape was distinctive enough to merit protection. The judge didn't dismiss claims related to other Cobra trademarks.

Shelby failed to "present any evidence that consumers associate the Cobra design with Shelby, and Shelby alone,'' the judge wrote in a ruling released yesterday. Zobel also found that jurors couldn't reasonably find for Ford on its counterfeiting claims because Superformance, which does business as Superformance Complete Replicars, used the Cobra mark on products not covered by Ford's registration. In February, Zobel ruled Wareham, Massachusetts-based Factory Five Racing Inc. couldn't sell replicas of Shelby cars.

Kathleen Vokes, a spokeswoman at Dearborn, Michigan-based Ford didn't have an immediate comment on the ruling. Officials at Shelby American and Superformance, which is based in Newport News, Virginia, didn't immediately return calls seeking comment. Shares of Ford rose 22 cents to $12.17 in New York Stock Exchange composite trading.

This may wind up as evidence in the court case with SAAC and assist them.

Mike

[roddster]

What, like he can't appeal?