This past December, Factory Five was served with a lawsuit from Carroll Shelby. The claims in the suit focus primarily over the shape or the “trade-dress” of the Type 65 Coupe. We were a bit amazed at this lawsuit as Shelby agreed to a court order that specifically precluded him from doing just this. Indeed. in February, 2001, FFR and Shelby mutually agreed to the entry of a Consent Judgment (“Order”) in the litigation brought by Shelby in the United States District Court, District of Massachusetts whereby, among other things, Factory Five agreed not to use the word “Cobra” to describe our products. Factory Five agreed to this since it was not using these marks anyway and, for obvious reasons, it wanted to avoid any association whatsoever with Shelby. In return, Shelby agreed to forever dismiss any claims relative to the shape of the Factory Five Roadster and Type 65 Coupe and other designs. The exact words of the 2001 Order are as follows…
”… Shelby dismisses with prejudice all claims that have been asserted or could have been asserted relative to the trade dress or designs of FFR’s kits, including but not limited to the kits known as the 427 Roadster and the Type 65 Coupe…”
Further, if Shelby believed that FFR was in violation of any part of the Order; for instance one of our guys inadvertently wrote an advertisement using the word COBRA, the Order required Shelby to give FFR 30 days notice to remedy any purported breach. In sum, pursuant to the Order, Shelby is precluded from filing a lawsuit without the agreed to notice and opportunity to cure. FFR required that this language be included in the Order because we knew Shelby was litigious to the extreme and we also knew that the entire planet, all the customers, and the industry in general, refers to these cars as “Cobras” in a purely generic sense and the risk that someone might make a mistake was real. To this day, I believe that FFR is among the one or two companies/entities/people that consistently identifies our products as our own rather than “Cobras”.
Even worse, not only did Shelby violate the Order in filing the lawsuit, he sued over the shape of a car that had already been litigated and dismissed eight years ago. What do we do now? We have filed a motion seeking to have the California Court to change the venue to Federal Court in Massachusetts which endorsed and entered the Order in 2001. If that is allowed, we will then seek to have the lawsuit dismissed as well as damages and/or sanctions for malicious prosecution and contempt of court.
All this is just a big waste of time and money for FFR. The fact that the website FFCARS was named along with the good guys at LK Motorsports is, in my opinion, harassment. FFR removed our link to FFCars, not because it was a violation of the Order or because we had to, but instead to mitigate the litigation costs, particularly where Shelby is claiming that FFCARS is an agent of FFR. Nothing could be further from the truth. FFR is just fine financially and is not asking any customers for legal defense money. The issues involving the claims against FFCars and LK Motorsports are another thing. Bill runs FFCars and since we have cancelled our ads with them, I think customers banding together to defend their own rights is a good thing.
Some other things to consider. We hear that Shelby is suing Kirkham for counterfeiting after using them as a supplier for years (you didn’t think that Shelby built those aluminum body cars did you?). Shelby makes claims against a website that is customer based and doesn’t sell or make “Cobras”. Why didn’t he sue Club Cobra or any of the myriad of websites that use the word “Cobra”. Why is Shelby suing us? Who knows. Some people familiar with this suit believe that Shelby saw our Land Speed Record Coupe across from his booth at the November SEMA show and got mad, simple as that. The original Coupe went 186 mph or so, yet FFR’s went 216 mph and next year the crew at SoFast Racing say that 250-275 mph is not out of the question at Bonneville. Anyone from Shelby is welcome to join us on the salt or on any track in the country where we prefer to settle our differences rather than in court.
Unfortunately, the memory of what Shelby did in the 60’s is rapidly being replaced with the image of the most litigious guy in the auto industry. Even Car & Driver Magazine recently type-cast as Carroll as “$helby” (notice the dollar sign) in an article that sadly chronicled his never-ending legal nonsense. Some familiar?
In the end, FFR knows that it has done the right thing and fully believes that it will prevail in this most frivolous action. Stay tuned. *Sigh*
David Smith
President
”… Shelby dismisses with prejudice all claims that have been asserted or could have been asserted relative to the trade dress or designs of FFR’s kits, including but not limited to the kits known as the 427 Roadster and the Type 65 Coupe…”
Further, if Shelby believed that FFR was in violation of any part of the Order; for instance one of our guys inadvertently wrote an advertisement using the word COBRA, the Order required Shelby to give FFR 30 days notice to remedy any purported breach. In sum, pursuant to the Order, Shelby is precluded from filing a lawsuit without the agreed to notice and opportunity to cure. FFR required that this language be included in the Order because we knew Shelby was litigious to the extreme and we also knew that the entire planet, all the customers, and the industry in general, refers to these cars as “Cobras” in a purely generic sense and the risk that someone might make a mistake was real. To this day, I believe that FFR is among the one or two companies/entities/people that consistently identifies our products as our own rather than “Cobras”.
Even worse, not only did Shelby violate the Order in filing the lawsuit, he sued over the shape of a car that had already been litigated and dismissed eight years ago. What do we do now? We have filed a motion seeking to have the California Court to change the venue to Federal Court in Massachusetts which endorsed and entered the Order in 2001. If that is allowed, we will then seek to have the lawsuit dismissed as well as damages and/or sanctions for malicious prosecution and contempt of court.
All this is just a big waste of time and money for FFR. The fact that the website FFCARS was named along with the good guys at LK Motorsports is, in my opinion, harassment. FFR removed our link to FFCars, not because it was a violation of the Order or because we had to, but instead to mitigate the litigation costs, particularly where Shelby is claiming that FFCARS is an agent of FFR. Nothing could be further from the truth. FFR is just fine financially and is not asking any customers for legal defense money. The issues involving the claims against FFCars and LK Motorsports are another thing. Bill runs FFCars and since we have cancelled our ads with them, I think customers banding together to defend their own rights is a good thing.
Some other things to consider. We hear that Shelby is suing Kirkham for counterfeiting after using them as a supplier for years (you didn’t think that Shelby built those aluminum body cars did you?). Shelby makes claims against a website that is customer based and doesn’t sell or make “Cobras”. Why didn’t he sue Club Cobra or any of the myriad of websites that use the word “Cobra”. Why is Shelby suing us? Who knows. Some people familiar with this suit believe that Shelby saw our Land Speed Record Coupe across from his booth at the November SEMA show and got mad, simple as that. The original Coupe went 186 mph or so, yet FFR’s went 216 mph and next year the crew at SoFast Racing say that 250-275 mph is not out of the question at Bonneville. Anyone from Shelby is welcome to join us on the salt or on any track in the country where we prefer to settle our differences rather than in court.
Unfortunately, the memory of what Shelby did in the 60’s is rapidly being replaced with the image of the most litigious guy in the auto industry. Even Car & Driver Magazine recently type-cast as Carroll as “$helby” (notice the dollar sign) in an article that sadly chronicled his never-ending legal nonsense. Some familiar?
In the end, FFR knows that it has done the right thing and fully believes that it will prevail in this most frivolous action. Stay tuned. *Sigh*
David Smith
President
