Besides covering kit and replicar car shows, highlighting special cars as featured vehicles, visiting shops, showing how things work in tech articles, and generally trying its best to keep the people who make up the kit and replicar industry (that's both builders and owners) informed, KIT CAR recently came across an interesting bit of information on the Internet.
Listed on Club Cobra's Web site (www.clubcobra.com/forums/ showthread.php?s=&postid=628302#post628302) was a letter expressing the need to put together a legal fund to fight a court case-a case that, depending on its rulings/findings, could alter the kit and replicar industry as many of us know it.
The request is genuine, and more importantly, what is discussed in the site's forum is real. Even those who have only a passing interest in Cobras have probably heard of the legal wranglings: Whom, if anybody, owns the shape of the Cobra roadster; who, if anybody, can trademark the design; and who could ultimately collect compensation from those using that design?
The issue has been fought over in different courts for years, but typically on a smaller scale as some Cobra builders have been individually targeted. But this has all changed as a group of kit builders (Unique Motorcars, ERA, Shell Valley, Backdraft, B&B) have joined with some private individuals to fight the newest battle. In a nutshell, if the federal appeals court in Boston accepts this case (possibly around the time you read this story), its decision could adversely affect many in the kit and replicar business.
And just to clarify what we mean by saying "kit and replicar business," we don't mean just Cobra builders. Because if they can't afford to pay royalties on each car they sell and still make enough of a profit to stay in business, then all the businesses that company deals with (engine builders, painters, part suppliers) are all affected. Multiply that by how many Cobra companies there are (and there are many), and you can begin to see the possible impact and importance of this particular court case.
To the right is the text of the letter, which started on the www.uniquecobra.com Web site (for owners of Unique Motorcars cars), but it has filtered out to some other sites, including Club Cobra's discussion forum. Rebuttals and comments are listed on each of these sites, too, and they make for interesting reading. This whole concept is important to every kit car enthusiast-just as important as kit car registration and some other forms of regulation we all have to contend with. Remember, United We Stand, Divided We Fall.
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 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. Unique 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 as they are in Alabama. You can send your contributions for the legal fund (overseen and administered by Wheeler Smith's law firm) to:
Body Shape Legal FundAttn: Lee Mitchell3500 Independence Dr.Birmingham, AL 35209