The Curtain Falls (Carroll, wha’s happend t’ye…)
Carroll, wha’s happend t’ye…
(14 July, 2001 CobraCountry editorial)
By now you may have become aware that Ford Motor Company and Carroll Shelby have filed suit in federal court in Massachusetts against Cobra replica maker Factory Five Racing.
According to a Boston Herald (newspaper) article of Wednesday, July 18, 2000: “Shelby’s suit seeks damages and legal fees, which may exceed $10 million, as well as the destruction of the fiberglass molds Factory Five uses to make its products. Shelby said he intends to see the lawsuit through to a trial… ‘The body forms were taken off one of my original cars,” (Shelby) said. ‘Now I’ve made my mind up that I don’t want to settle… they (Factory Five) seemed like a likely candidate to go to the wall with.”
Shelby said he also plans to sue the many other companies making Cobra replicas as well.”
The Smith Brothers (of Factory Five) and I have had our differences, but this issue transcends and eclipses those differences.
About 10 or 11 years ago… I think it was about 1989… I received a phone call from Don Landy, an attorney and executive manager of various of Carroll’s properties. This was early in the proceedings of the widely-publicized Ford vs. Shelby federal lawsuit; Don contacted me to ascertain if perhaps I could provide any aid and assistance for Carroll’s defense. My take on the situation, as I suspect was yours, was “Big-bad Ford molesting America’s Legend.” I assured him that I’d do everything that I could to help out; Don filled me in on the issues involved, including the particulars of what plaintiff Ford was asserting in the civil suit.
During the course of that conversation Don happened to relate to me that Ford was claiming that Fomoco had no knowledge of Cobra replicas “until just recently.” This position was apparently fundamental to Ford’s case, since any infringement of patent, copyright or trade dress rights must be diligently monitored, challenged and eliminated. Failure to protect those property rights can cause one to forfeit said property rights. The lights started flashing.
I advised Don that only a week or so before, while sorting through and pruning out thousands of our archived automotive magazines, I’d stumbled across a copy of the August 1982 Popular Mechanics magazine (see above). Murphy notwithstanding, I had decided to hold onto it. Emblazoned on the cover was a staggered phalanx of three Cobra replicas (an ERA, a Contemporary and an Aurora 289 slabside) ripping down a straightaway at Lime Rock. I had at the time stopped what I was doing to re-read the cover article titled “Cloning the Cobras,” and I advised Don that it encompassed a little gem of information that he might deem to be valuable to Carroll. It was text describing the Aurora that riveted Don’s attention; it read in part “… like any new car, the Aurora even comes with a 12-month/12,000-mile warranty… Aurora buys 169-hp, 302 V8s FROM FORD, complete with two-barrel carb and four-speed transmission… Aurora Cars Ltd. of Richmond Hill, Ontario, Canada, is building 125 cars a year.”
Don was elated, beside himself. He asked me to Overnight/Priority the magazine to him.
Never mind that those 289 and 427 Cobras—all of ’em—were of course designed and produced not by Ford, but by AC (Auto Carriers) in the UK. So Fomoco could lay no claim to the Cobra’s design or appearance. And never mind the fact that Steve Arntz’ first fiberglass Cobra clones hit the marketplace way back in 1970, followed in succession by Unique Motorcars, Aurora, ERA, and Contemporary… and incidentally, all were advertised as “Cobras,” with no “replica” suffix, and each and every one of them beginning in 1970 was bedecked with the various Cobra emblems and logos. Indeed, on that 1982 PM cover you can easily see the round Cobra logo on the hood of all three of those Cobras, and the 427 emblem on the left fenders of the ERA and the Contemporary). All this with nary a word of protest from Henry’s legal legions from 1972 ’til approximately 1988. Nay, y’kin dispense with all that drivel.
According to Don, this 7-year-old PM article alone could serve to provide Carroll with the evidence he needed that Fomoco had failed to police any property rights it was suddenly seeking to claim. Blimey, shivver me halfshafts, here was Ford supplying a special-warranteed drivetrain to the very highest-production Cobra replica maker of that era… beginning way back in the late 1970s.
Here was Carroll’s coup de thèâtre… evidence that this mucho-macho, Marlboro-man musclecar, this menace of the motorways, had defaulted (make that pole-vaulted) into public domain. Eh? Did someone say “public domain”? Did someone say “prima facie”? The subsequent Ford/Shelby settlement must’ve substituted the phrase “Hush your mouth.”
Shortly thereafter Don flew me up to San Francisco to be interviewed and deposed by Shelby’s legal team. Later on… after the federal judge ruled in favor of Carroll and the public domain status of all things Cobra… Ford and Carroll settled said legal conundrum, perhaps merely agreeing to divvy up the world betwixt ’em and ignore the thorny issue of public domain; this erstwhile marriage-of-convenience then presented an ex post facto motion to have the court’s ruling set aside, a legal oddity, but one the judge agreed to. I’m not quite sure how these things occur, but such prickly little issues as “irrefutable evidence of public domain status” seem curiously missing from the subsequent sabre rattlings and this most-recent legal foray. Public domain status of the Cobra and its distinctive trimmings would appear to any casual observer to be a fait accompli, but methinks neither Fomoco nor Carroll had anything to gain by recognizing such a bothersome reality.
Bear in mind that the Cobra replica industry has existed and thrived—right out in the open—for over 30 years; bear in mind that many of the Cobra replica makers were longtime admirers and unwavering supporters of Carroll and his mechanical masterstrokes and his peripheral endeavours (Judy and I alone have contributed many thousands of dollars to Carroll’s Children’s Foundation over the years, and I’ve personally covered more Shelby-related events than I care to attempt to recount); bear in mind that all those thousands of Cobra clones have quite effectively served to breathe permanent life into the legendary motorcar that Carroll dismissed and jettisoned as unmarketable way back in 1968. Sigh.
A Globe Theater satire might go something like this: Scene 1) leading man abandons his faithful wife and pursues a life of wholly new adventures; Scene 2) aeons later, leading man discovers to his chagrin that his discarded mate is being merrily entertained by a throng of ready/willing/very-able suitors; Scene 3) leading man manoeuvres to forcefully repossess spurned spouse, snarling that if he can’t have her, nobody can. He defiantly thrusts up his gnarly center finger as the curtain closes. The audience is silent.
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