• Feb 22nd 2010 at 1:05PM
  • 29

Factory Five Racing Type 65 Coupe – Click above for image gallery

The conflicts between Carroll Shelby and various kit car makers are well known and sometimes seem never-ending. Massachusetts-based Factory Five Racing has been at the forefront of the lawsuits with Shelby, and the two have been in battling it out in the courtroom for a decade. The initial lawsuit, filed in the year 2000, resulted in a settlement that barred Factory Five from using the terms "Cobra, 427 S/C, Shelby, Shelby Cobra, Daytona Coupe and Daytona Coupe Cobra" on any of their products.

The two parties were at peace for eight years until Shelby filed another lawsuit in December of 2008 alleging that Factory Five's Type 65 Coupe (pictured above) bore "designs confusingly similar to the Daytona Coupe Trade Dress" and that FFR used the term "Cobra" in the metatags of its website to promote its product.

This past week, a U.S. District Court ruled in Factory Five's favor, allowing the company to continue to produce the Type 65 Coupe. The reason for the decision, according to the 25-page court document, is based on the settlement from the prior lawsuit. The original case stated that "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." Essentially, the courts ruled that Shelby couldn't sue Factory Five for something it had already agreed upon. In addition, if Shelby believed that FFR was in violation of the terms and conditions of the agreement, it was to first give written notice to FFR of the alleged violation prior to any judicial enforcement, which it did not.

In response to the decision, Factory Five president David Smith wrote a scathing statement regarding Shelby, claiming that "Shelby's legal bullying has caused Factory Five to endure years of hardship and expend over $1 million in legal fees to defend against what many in the general public believed to be frivolous in nature." He went on to say that Carroll Shelby is "a man whose lasting legacy is rapidly changing from racing legend to prolific litigant." You can read Factory Five's full press release regarding the lawsuit after the jump.

[Source: Factory Five Racing]


Carroll Shelby has failed in his second attempt this decade to halt Factory Five Racing from manufacturing and selling kit cars which resemble vintage 1960's Shelby automobiles. In a ruling issued yesterday by the United States District Court for the District of Massachusetts, the Court dismissed Carroll Shelby's 2009 suit against Factory Five wherein Shelby alleged that Factory Five's Type 65 Coupe infringed on the trade dress (design trademark) of Shelby's Daytona Coupe® automobile. Shelby filed a similar suit against Factory Five in 2000 alleging trade dress violations of "designs that relate to the vintage 1960's automobiles created, designed and made by Carroll Shelby" including but not limited to the COBRA 427 S/C®. After almost two years of litigation, Factory Five and Shelby settled the earlier suit pursuant to which the Court dismissed Shelby's trade dress claims relative to Factory Five's kit Roadster and Type 65 Coupe which are similar to Shelby's COBRA 427 S/C® and Daytona Coupe®, respectively.

Despite Shelby's dismissal of the trade dress claims in the 2000 law suit, in December, 2009, Shelby attempted a second bite of the apple by filing suit against Factory Five, this time on his home turf in the federal court in Los Angeles. However, the change in venue was short-lived. Over Shelby's arduous objection, Factory Five was successful in having the suit transferred to the District of Massachusetts, the site of the earlier litigation. Shortly thereafter, Factory Five filed its Motion to Dismiss based, in part, on the Court's judgment in the prior law suit.

In a twenty-five page decision, U.S. District Judge Patti B. Saris held that Shelby was legally barred from seeking legal redress as to Factory Five's manufacturing and sale of the Coupe design where these claims have already been raised and adjudicated in the earlier suit. The Court's ruling dismisses all existing and future claims by Shelby against Factory Five related to the design of the Daytona Coupe®. The Court also dismissed several other federal and state claims by Shelby against Factory Five unrelated to the Daytona Coupe®. It is unknown at this time whether Shelby plans to appeal.

Factory Five's President, David Smith, was understandably pleased with the Court's decision. Smith stated that it has always been Factory Five's position that Shelby never had exclusive legal ownership to the shape of the Daytona Coupe® or the COBRA 427 S/C® for that matter. "In the 2000 lawsuit, Factory Five had ample evidence to prove that Shelby had no legal rights to the shape of the Daytona Coupe® and COBRA 427 S/C®" said Smith. Smith believes that Shelby and his lawyers were well aware of these facts, back in 2000, and opted to dismiss these trade dress claims with prejudice rather than try the issues on the merits. Smith notes that Pete Brock, not Shelby, designed the Daytona Coupe® and only six were constructed in the 1960's. These cars were used solely for racing and were never sold in commerce. Factory Five began manufacturing its Type 65 Coupe in 1999. Smith believes that Factory Five has manufactured and sold more kit cars based on the Daytona Coupe® then anyone else in the world, including Shelby.

Smith is cautiously optimistic that the Court's ruling will once and for all put an end to Shelby's legal wranglings against Factory Five as well as other kit car companies. Shelby's legal bullying has caused Factory Five to endure years of hardship and expend over $1 million in legal fees to defend against what many in the general public believed to be frivolous in nature. At this juncture, Factory Five is contemplating several options including seeking sanctions against Shelby, a man whose lasting legacy is rapidly changing from racing legend to prolific litigant.

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    • 1 Second Ago
      • 1 Month Ago

      FFR is right. Shelby is ruining the most precious thing he has; his legacy. At this point I believe he will be remembered as a complete corporate greedy wanker. What a shame. What a wanker!

      • 5 Years Ago
      I have a love hate thing for Carroll Shelby.
      • 5 Years Ago
      Shelby is a greedy old man,.... but you don't exactly see companies selling vintage Ferarri or Lambo replicas. If factory five wants to continue to sell fake Cobra's they should work out a licensing agreement or just sell kits.
        • 5 Years Ago
        "If factory five wants to continue to sell fake Cobra's they should work out a licensing agreement or just sell kits." They do just sell kits. And they settled all of this in the original lawsuit/settlement.
        • 5 Years Ago
        All FF does is sell kits.

        You can find plenty of kit car makers that deal in the older Ferrari/Porsche/Lambo kits. I would love to build a kit Ferrari 330 P4
      • 5 Years Ago
      The old man is getting senile and oppressed. You think he doesn't sit at home wondering why he can't be out there winning races right now like he did in thre 60's? The only thing he cares about is having his nane out there for the last few years of his life.

      I'm sorry, but although the Cobra and Daytona Coupe will always be a legend, and a great car and story, it's the 21st Century Mr. Shelby, it's time to move on and put the company out to someone who is not as old fashioned as you.

      You lived to make the GT350, and you lived to see it revamped into a hunking display of plastic garbage (2011).

      The time is now to settle your throne, and step down.
        • 5 Years Ago
        "pirating his designs"

        That is just it, they are not his designs..further more they were never production cars which underwent patents and such...
      • 5 Years Ago
      The car does look alot like the Daytona, and the people how buy it are for sure trying to buy something as close to the original Daytona, but for less than $7 million.

      I just say that I would be pissed if people were making money off of my design as well...
        • 5 Years Ago
        Read the article and responses, and do some research....Shelby did not design the Daytona Coupe. Or the Cobra, for that matter.
      • 5 Years Ago
      My question is why are there SO DARN MANY different replicas of those particular cars.

      There were so many racing cars, and prototypes, even concept cars that nobody has access to, and were never built for the street...

      Not to mention NEW, ORIGINAL designs...

      Why does everyone feel the need to replicate just a very few... isn't 3 or 4 different replica cars enough of each?

      If people can make a living selling these kits, within the bounds of trademark, patent, and copyright laws... that is fine.

      I am mostly speaking to the condition of demand, rather than supply. I barely go to midwestern car shows anymore... because everyone brings the same things.
      a 32-Ford Hot-rod, or something like it, most with no parts older than 1980.
      a 50's lead sled or shoe-box, candy painted to taste.
      a 60's muscle or pony car. (at least those tend to be actual production-based cars, or close to it...)
      a shelby replica. Tons of shelby replicas. lines of shelby replicas.

      Where are the rare cars? Where are the replicas of cars that wowed the public on auto show displays, but then never actually got built.

      You can't throw a dart at a kit car magazine without hitting a shelby replica on one of the pages.

      But nobody builds replicas of the Jag XJ13, or the Alfa Romeo Tipo 33, or Cangura concept car... or dozens of other interesting vehicles... like a 21st century kit car update of the Olds AeroTech concept, or something...

      And good luck finding a kit car that looks interesting as an original design. They are either insane, or date themselves pretty heavily to the 1970s, as a copy of something else, anyway. Even Factory Five's GTR looks like a copy of a Fiberfab Avenger, looks like a modified copy of a Ford GT40.

      I have said earlier today that good design is good design, and there is nothing new under the sun... but there is more than just one or two good designs under the sun, and the pool could stand to be expanded in the home-built car arena, which is where original traits should be even more common than the manufactured car industry, not less so.

      Maybe I am the only person who likes cars that aren't carbon copies that everyone else has.

      "Look at me, I am different, just like everybody else!" - no thanks. I'd rather be different because it is what I want and like, and my taste is dictated by merit, not solely by popularity.
        • 5 Years Ago
        there used to be a company that made nice looking replicas of the 1961 ferrari 250 GT California. They made the cars for FErris Beuller and I think they made a few for public sale too. I think they ran around 30k for a turnkey car too. That would be sweet to have!
      • 5 Years Ago
      Maybe someone who knows can explain better...

      Patents, as I know them, are good for 17 years. If I patent a design (utility or DESIGN), I can sue others for infringement during that time. After it, I'm SOL.

      Trademark, thanks to Coca Cola and MickeyMouse, lasts practically forever. I do not think that you can trademark a car design or mechanical device. It generally refers to words and names.

      I don't think 'Ol Shell ever had a case. We all could produce Cobra-copies with impunity so long as we don't use the trademarked names.

      Right or wrong?
        • 5 Years Ago
        PAt you are pretty much correct. This is an ancient design and patents even if they were originally made on the car are now outdated.
      • 5 Years Ago
      "Can't we all just get along". Shelby should just buy Factory Five and they'd both get richer.
      • 5 Years Ago
      I wish Carol would just get over himself..........
      • 5 Years Ago
      Anyone jumping into the success of another must be stopped and sued. If FFR is so successful, why copy something from someone else?
      • 5 Years Ago
      Screw Shelby.

      I am soooo sick of hearing about him. It's bad enough that he'll whore his name out for a buck, but he'll also go after anyone just because he has a team of lawyers chomping at the bit to sue anyone.

      • 5 Years Ago
      So when will he be so senile that he'll sign anything with an engine and four tires for $5?
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