Body Shape legal Fund

[eliminator]

VERY IMPORTANT

Last week I received a faxed letter from Wheeler Smith, the (patent/trademark) attorney who has represented Unique Motorcars (and, in no small way, the Cobra replica industry at large) for years.

To make a long story short:

Here's the issue as I understand it, as expressed by Maurice Weaver at Unique Motorcars: in the federal case in Boston, the judge some time ago ruled that the shape of the Cobra has become public domain.

But now that Shelby and Superformance have concluded an out-of-court settlement, Superformance presented no objection to Shelby's appeal a few months ago that that specific (body shape) ruling be set aside--which would grease the skids for Shelby to charge forward with his application for a U.S. patent on the shape of the Cobra roadster.

This is a dire and immediate threat to the replica industry. Only a fool would dismiss these forebodings as "no concern to me." Without prompt financial support by interested parties to intervene and enter into the court an "amicus brief" (a document filed or a petition rendered in a legal proceeding by an interested party who is not directly part of the case), there is no assurance that this latest plaintiff appeal to set aside the earlier court ruling won't slip through the cracks and thus snatch the shape of the Cobra roadster from public domain.

In the best-case event, the cost of every 427 roadster replica would be much higher as high royalty fees could be levied for each replica sold. Not good. In the more-likely event, only a select few companies would even be authorized to produce or import 427 replicas.

As Curt Scott has summed it up: "The Cobra replica industry at large has irresponsibly let every brass ring of opportunity (to end the threats) pass them by--each of the non-participants predictably fantasizing some lame and preposterous excuse as to why the threat doesn't apply to them. But this is last brass ring is on the tail end of the speeding caboose. If you're a replica producer or a dealer or a supplier to the Cobra replica industry, then you permit this last brass ring to pass you by at your own very-real peril."

Maurice Weaver at Unique Motorcars has long been personally and heavily engaged in this intervention; he and the Weaver family are veterans of several (cripplingly expensive) federal-court skirmishes regarding these issues, so his resolve to put a stop to these legal threats should be appreciated and saluted. Maurice and several other roadster replica makers again implore the other producers, assembly shops, industry suppliers and parts makers, AND INDIVIDUAL ENTHUSIASTS to contribute to the legal fund (below) set up to put a permanent end to these expensive and punishing legal adventures.

Maurice can tell you a lot more about this critical issue. His (very busy) telephone numbers are:

(256) 546-3708, and (256) 546-2395, both Central Time.

Maurice's email address is: Unique@MicroXL.com

You can send your contributions for the legal fund (overseen and administered by Wheeler Smith's lawfirm) to:

Body Shape Legal Fund
Attn: Lee Mitchell
3500 Independence Drive
Birmingham, Alabama 35209






Rick
#4279405

[rdorman]

Wow! I will be the first to tell you when it comes to legal matters I am a total idiot but this very dire indeed. Is there a paypal account where people can help out? I would hate to see all the fine replica manufacturers and suppliers to go under because of this.
Thanks
Rick

http://www.ohiocobraclub.com
http://www.londoncobrashow.com

[weaver]

As alot of you probably know us and ERA have been fighting this for several years spending thousands of dollars while most other cobra manufacturers stood by with no worries, now that Superformance has signed their deal with Shelby and didn't fight Shelbys trade dress appeal we have gotten a little more help, Shell Valley, B&B, ERA and Power Performance have joined with us but we still need more manufactureres to join in and share in the expense. Its easy for people to sit back and say the courts will never rule in Shelbys favor because he never had trade dress to begin with but when you have as much invested as us and the other manufacturers do you have to take this serious. The Federal courts have continued to hear this case several times now so there is always the possibility that he could win, we would then be at his mercey and he would decide who if any of us could manufacture the car. We have our own attorney in Birmingham that has worked with us since the mid 80s but now had to hire a attorney in Boston because that is where the case is being heard. If you are in the market for a kit or turnkey ask the manufacturer you are dealing with and see if they are helping in this fight or just riding these companies coat tails, if they aren't helping then don't support them. If anyone is interested in contributing to this very important cause I can email you the address of our attorney.

Thanks Alan

[pgermond]

Alan,

Why not just post the address?

Thanks.

Phil

427 Roadster, #4279436
Southern Automotive FE
3:31 and Toploader

Roseville (N.Cal)

[weaver]

The address is in the 1st post by Eliminator.

Alan

[pgermond]

Didn't realize that was the law firm first time I read it - thanks

Phil

427 Roadster, #4279436
Southern Automotive FE
3:31 and Toploader

Roseville (N.Cal)

[COBRAGAR]

RICK , CALL ME AT HOME 305-665-2796 OR 305-626-7580 WORK IN REGARDS TO THIS MATTER .THANKS GARCIA AKA GAR AT WORK

[bittentoo]

Wonder if FFR is going to join the fight[B)]

[weaver]

Factory Five settled out of court with Shelby and Ford, that is one of the reasons this crap is still going on. If they would have gone to court instead of settling it would all be over.

Alan

[souzape]

This issue has always struck me as odd. Shelby basically built a power train modification to a British car that had been in production for years. He might have some claim to the shape of the Daytona Coupe (Pete Brock was a Shelby employee) but even the 427 cars were more about chassis modifications than the body which was an evolutionary change over the small block/leaf spring cars. If anyone had their nose out of joint about the body shape issue you would think it was the Hurlock Brother's survivors and/or AC. It's really hard to maintain any respect for Shelby when he basically threw the Cobra away in 1967 and now is trying to cash in on something that wasn't his to begin with (body SHAPE). If he wants rights to the name ( I seem to remember he sold that to Ford for about 1$) or the Cobra emblem that's OK...but the body shape seems to be pushing reality. FA! Probably shouldn't put anything past our illustrious legal system however.

Phil Souza

[rdorman]

There is certainly a buzz going on about this. CC, Gasholes and others are all talking....

http://www.ohiocobraclub.com
http://www.londoncobrashow.com

[RJacobsen]

Sounds like Shelby is looking for out of court settlements from anyone who will pay. I don't think he has a leg to stand on in court. Any patent claims would have had to been filed within One year after the product was first offered for sale, after that it becomes public domain.

SOUZAPE- AC would have soul rights to a Design Patent on the original cars shape (the slabside), But if Shelby was responsible for designing the flaired fenders of the FIA and 427 then he could have (within the first year) filed for a Design Patent on them. Design Patents are very specific, any additional changes would require additional patents. The market that he is trying to capitolize on now would probably not exist had he patented the design. It would at least be very different. All of us would like to go back 40 years and cash in on something big that we missed. However that dosn't stop someone from draging nice people to court to try and get what they want.

Rod
Roseville, Ca.
289 FIA #9152 "The Flintstone Cobra"

[weaver]

Its doesn't matter if he has a leg to stand on or not, as long as the courts keep hearing this case we have to spend money fighting it. This has been going on since the mid 80's and we are about spent out, we need help from the rest of the industry.

Alan

[souzape]

Rod- you hit the entire point....HE DIDN'T PATENT ANYTHING.

[souzape]

Alan- why don't we get the bug in Shelby's ear to go after all the GT-350 clones....my god, there must be thousands of suppliers for those parts out there! PPG alone should be worth millions for supplying the paint for those pilfered stripes.

[clayfoushee]

Alan, how you coming on getting all the other manufacturers together in a legal alliance? Where are the Kirkhams?

Clay

'98 Unique #9299, 427FE side oiler (452.1-stroker), top-loader (close), 3.31 rear

Annapolis, MD

[traveler]

I was in a book store last night and picked up a Ford magazine with a black Mustang with flames on the cover of the magazine.One of the articles in this magazine was titled AC and Shelby team up to built the aluminum Cobra again . The price of this car was listed at $135,000 minus the drive train .
I open the Unique forum this morning and see all the discusion about Shelby's attempt again to gain patten rights to the shape of the Cobra . I have also read about the settlement between Shelby and Superformance in South Africa .It makes me wonder if Shelby is more interested in being the exclusive producer of the Cobra again instead of just getting paid royalties . The article in the Ford magazine stated he was opening sales offices in about 6 States across the U.S. for the aluminum car with his partner AC in England to build for the U.S. market .

If for some reason Shelby is able to get exclusive patten rights on the shape of the Cobra he alone will be able to give rights to who will produce this car . Already he is starting to make this car again in England and maybe in other countries such as South Africa .It is concivable he would not want competition from other Cobra kit car makers and if these cars are built outside the U.S. there probably would be no need for the items supplied to the Cobra Kit car Industry from busineses here . We would possibly loose another industry from the U.S. to another foreign country .

In this senerio there would be no competition from other kit car manufactures . The price one might have to pay for this car would be out of the reach of most of us and the quality of the car would possibly suffer .

I am happy I have just taken delivery of a Cobra kit car . I hope to have it running in a few more weeks . I know now how it feels to realize a 40 year dream . I hope others who have a dream of owning a Cobra someday will not have to forget their dream because the price is $135,000 or higher or, you have to wait 2 years for delivery because AC only builds 40 per year .

This is a real possiblity because I work in an Industry that use to be very strong in the U.S. .Today this Industry is basically all in foreign countries .I would hate to see what has become an American icon being made exclusively out side the U.S.

Traveler

[JeepSnake]

Jeez - I already had a headache this morning, and then I read this & the ClubCobra thread! :(

Clay, I too am very interested as to where the other manufacturers are. This is very much a "stand together or hang separately" type situation!

Anybody know the facts about the post claiming that Shelby DOES own rights to the slabside & FIA bodystyles now? [?]

Funny, but for every person we have ask us at a show: "Is this a Cobra?" there's two or three that say, "This is a '57 Vette, right?" How's that for "shape recognition?" ;)

Zach Butterworth
Apple Mt. Cobra Pit Crew
(Mom & Dad's 427)

[weaver]

We don't have any more support than we did before,we have had some customers send donations. The Kirkams don't think Ford or Shelby have a leg to stand on so they won't help in the fight, they are sitting back letting us fight the battle and reaping the rewards.

Alan

[Brent]

I noticed David Kirkham, always quick to grab some free press and get his name on any thread on CC he can ) has not said a word.

I get so sick of everyone over there permamently mounting their lips on his a$$. Then, when a real industry shaking situation arises he is nowhere to be found.

Best of luck Alan!
You guys are a real class act, always have been!



Brent

[clayfoushee]

He is nowhere to be found because he's still selling aluminum bodies to Shelby, after a brief hiatus, and after AC recently closed the doors yet another time. He expects to be the primary builder of aluminum Cobras because SPF has no capability to do that. Of course he's not saying anything.

Clay

'98 Unique #9299, 427FE side oiler (452.1-stroker), top-loader (close), 3.31 rear

Annapolis, MD

[weaver]

The thing is Superformance does have the capability of building aluminum bodies, they are building aluminum street rods now. They are sitting back because they are clueless when it comes to the legal battle we have been dealing with for years, we talk to them about it but it goes in one ear and out the other.

Alan

[JeepSnake]

"You guys are a real class act, always have been!"

Brent, you've pretty much summed up what I've been wanting to say ever since I read this thread the first time. The Weavers & this "Unique" crowd are why I always make sure on windshield placards at shows that the sign reads - "Make: UNIQUE MOTORCARS"

Would you believe that my Chevelle is more welcome among this group than it is with about 75% of the Chevy crowd? See, that 75% has an attitude roughly parallel to that of Shelby's: "Oh, you just have a Malibu. Only Super Sports are truly worthy. I'm sure you'll never be able to acquire a real one with your meager resources. Now go away, boy, and please leave through the servants' entrance.":( Contrast that to our arrival in Pigeon Forge last month: within minutes, Maurice and at least 5 Unique owners were "oohhing & aaahhing" over the Chevelle, and complimenting me on the work we'd put into it.

UNIQUE PEOPLE - from the Weavers to the owners - are why I enjoy talking with people so much at shows about the car. One of the first things I tell people who are really interested is, "Drop by Unique's shop on East Broad if you're ever in Gadsden."

Two weeks ago, I talked with a guy about 24 years old for nearly 30 minutes about the car, the different kits Unique offers, etc. The more we talked, the more quiet & blue-looking he got, till he finally said, "I've got a kid in diapers, etc. etc. I don't reckon I'll ever be able to have anything like this.":( You ought to have seen his face when I told him about what a car costs if you start with the DP Kit and finish out yourself! He was literally ecstatic that a car "like this" could be within his reach, that an owner (well, sorta) actually took time to talk with him about it, and that the folks that sell them would really talk to him if he stopped by sometime! I don't know who walked away from the conversation with the bigger grin - him or me! :D

Yes, I know that this is a business for the Weavers, but we all understand that it's much, much more than business, too. It's Homecoming, Pigeon Forge, friendships, fun - and, for a lot of folks, helping them realize a lifelong dream with these cars. Let's all pitch in however we can to help counter this threat.

(Sorry if I've rambled a bit, but just felt the need to vent!)



Zach Butterworth
Apple Mt. Cobra Pit Crew
(Mom & Dad's 427)

[clayfoushee]

Alan, yes they are clueless about a lot of things, but the K-boys are doing business with Shelby again. What you just said about SPF's alum. capability is new information, which most people aren't aware of. If you've told them that, it apparently hasn't registered.

Well said, Zack!

Clay

'98 Unique #9299, 427FE side oiler (452.1-stroker), top-loader (close), 3.31 rear

Annapolis, MD

[RJacobsen]

Alan- perhaps you should file for a patent on your Unique body shape and fight fire with fire. I'm serious, it can take a couple years to get through the USPTO and in the mean time you would be patent pending.

Rod
Roseville, Ca.
289 FIA #9152 "The Flintstone Cobra"

[will butterworth]

Alan--the ladies running the patent library at auburn university are great at running patent searches .Must be some of old shell,s kids interested, cause he has been on one leg for a while, heart, lungs. Will-alabama

[eliminator]

Kirkham is probably in bed with Ford anyway, wasn't their car on display at the SEMA Show in Vegas, (FORD MOTORCOMPANY BOOTH). Ford and Shelby are selective in who they Pi$$ Off, I am sure we would all be surprised at the deals that have been cut. It's all about power and greed.

Rick
#4279405

[will butterworth]

Rick--on target--Will-alabama

[patrija]

Is there a Paypal address to send to?

[Russ Dickey]

quote:Originally posted by JeepSnake

Anybody know the facts about the post claiming that Shelby DOES own rights to the slabside & FIA bodystyles now? [?]

I am curious about this, too. How does this affect Unique and ERA's FIA cars?

Unique 289FIA - Chassis #9229 - Viking Blue

[weaver]

Patrick, our lawyer does not have a Paypal account, if you want to make a donation please send it to the address on the 1st post. The only trademark he has been granted are on the names 427SC and 289FIA, he has never been granted trade dress on the shape, that is what the appeal in federal court is about. Notice we don't use the words 427SC or 289FIA in our literature or on our web site, Shelby woyuld want us to pay him a royalty if we did. What people don't understand with trade dress on the shape is that he is not interested in a royalty from us or any other company, he want Superformance to be the sole manufacturer and get his money from the deal he has with them. We offered him a royalty deal in the mid or late 80's but he ignored our offer, he later claimed he asked us for a royalty and we refused.
Clay, do you think shelby or superformance will need Kirkham to make their deal work, Superformance has the money and resources to build cars out of aluminum and for less money than they would have to pay someone in the US.

Alan

[clayfoushee]

Alan,

No I don't. I was previously unaware that SPF had branched into "aluminum." They could just as easily take out KMP if they win on "trade-dress" (which I still think is doubtful, though possible), and if they want to take them out.

But again, isn't the real problem that it takes money to fight even unworthy lawsuits? As I noted elsewhere, winning in court does not always mean "winning."

Clay

'98 Unique #9299, 427FE side oiler (452.1-stroker), top-loader (close), 3.31 rear

Annapolis, MD

[weaver]

Your right Clay it takes a lot of money to fight someone like Shelby and Ford, sometimes making us spend money is what these suits are all about. We have faired pretty well over the years fighting with Ford but we never get our legal fees back, it is hard fighting companies with deep pockets.

Alan