Legality of replica cars

Out of curiosity, when is it legal to manufacture a copy of a car? I've read stories about Shelby going after Cobra kit car companies, but Factory Five seems to be doing just fine. And as Wearymicrobe is demonstrating, one can buy a 550 Spyder. So is it okay to create a replica of any car and offer it for sale?

Depends on a few factors: the brand, model, if the original manufacturer has a trademark license on the body, how diligent they are about defending said trademarks, and if they offer licensing agreements. 

FFR doesn't call their car a "Cobra" and since the body isn't actually a Shelby creation (designed and built by AC), I believe that is why he lost that battle with FFR and other replica manufacturers.  

Not sure what arrangement Beck has with Porsche if any, although the "P-name" is not mentioned anywhere on their website. Beck has been making these replicas for so long they may have started before Porsche knew they had to defend the trademark in order to hold it. Maybe Weary knows.

Ferrari are known to be quite diligent about squashing replicas of any type after the glut of Fiero based cars in the 80's. RCR was doing a P4 replica for awhile, but it's no longer shown on their site, so they probably got a letter from the Ferrari legal dept as well. 

Some manufacturers defend their old models more than others. What are you hoping to do?

The last line in this article is interesting an might shed light on why not all manufacturers go to court. Whatever the secret is probably involves $$$ on the manufactures part to avoid further litigation.

Ferrari's victory against replicar maker Thomas McBurnie could turn the look-alike business on its ear.

Ferrari SpA of Modena, Italy, prevailed in a suit against McBurnie Coachcraft of San Diego, obtaining an injunction forcing McBurnie to stop building his California Daytona Spyder - a copy of Ferrari's 365 GTB/4 Spyder.

"This puts us manufacturers in a great position to go after replica makers," said Ferrari's lawyer, Thomas Kain.

Judge Rudi Brewster ruled in Ferrari's favor after a jury of five men and one woman determined that the real Daytona Spyder was "unique and distinctive."

However, McBurnie's attorney, Robert Rochelle of San Diego, said the jury found little "likelihood of confusion" between the cars because most people wouldn't recognize a real Ferrari anyway.

Rochelle maintains the design of the original Spyder has little "secondary meaning," a typical test for trademark infringement. He also said Ferrari never applied for a design patent on the Daytona, a car that has been out of production for 15 years.

Kain said although the Daytona Spyder is out of production, the design deserved protection because of its uniqueness and because the company's promotions had kept it alive.

Basically a rebodied Chevrolet Corvette, the California Daytona Spyder first became famous as actor Don Johnson's "Ferrari" on Miami Vice. McBurnie admitted to displaying his car with the Ferrari logo without the automaker's permission on at least one occasion, but Ferrari attorneys said this was not a central issue in the case.

Regardless of the label, Ferrari argued the look-alike was an illegal copy because the general public was liable to confuse it with the real thing, thus cheapening Ferrari's public image.

Original Ferrari Daytona Spyders have sold recently for more than $1 million.

Ferrari introduced the Daytona 365 GTB/4 in Europe in 1969, but built only 127 Spyder versions (69 were sold in the United States) between 1972 and 1974. It was the last front-engined, 12-cylinder Ferrari Berlinetta and was replaced in the company lineup by the midengine Berlinetta Boxer 365 GT/4 BB.

McBurnie is expected to seek a stay halting the injunction against his company, so he can continue to sell his California Daytona Spyder pending the outcome of the appeal.

The company has seven distributors that sell the California Daytona Spyder kit for $8,000, or completed cars for $39,000 and up. Earlier, McBurnie said about 80 had been sold, with another 20 or so still in production.

A restraint of trade countersuit by McBurnie against Ferrari charging that the company was trying to lessen competition or create a monopoly was settled out of court. Rochelle said the agreement calls for the terms to remain secret.

Re 550 Spyder:  The term "Spyder" has been used by several companies, and is more a type of car than a name.  And, IIRC, one can't copyright a number.

From just over a month ago:

https://www.driven.co.nz/news/ferrari-loses-massive-lawsuit-regarding-the-world-s-most-expensive-car/

When it comes to intellectual property, and brand awareness, iconic Italian manufacturer Ferrari doesn't mess around. Hundreds of lawsuits regarding questionably modified cars and influencer culture surrounding the brand have proved this. 

Because of this, it's no surprise that Ferrari has been fighting tooth and nail for the past few years to keep the body shape of the 250 GTO under trademark so replicas can't be sold by other businesses. 

Back in 2008, Ferrari first filed the trademark for its most coveted car, one that still holds the world record for being the most expensive car ever sold at auction with a $73,000,000 winning bid. 

Just last year, Ferrari managed to retain this trademark after an Italian coachbuilder by the name of Ares unsuccessfully attempted to argue that Ferrari isn't making use of the trademark. 

Just recently, Ares' persistence paid off and managed to convince the court that the trademark was "filed in bad faith, namely, as a defensive mark in order to block third parties to produce and sell similarly built sports cars."

According to the European Union Intellectual Property Office, companies have to be making use of a trademark to keep it active, and Ferrari haven't exactly been pumping out 250 GTO tributes lately. 

This ruling means that the door has been opened for third-party car builders to legally build and sell replicas of the 250 GTO, including Ares, who are obviously keen to get the show on the road. 

While it lost the exclusive right to the full-sized cars, Ferrari reportedly managed to hold on to the exclusive rights to producing 250 GTO toy cars. Which may be a small win, but is still worth something. 

 

This doesn't mean that the replica market is about to be flooded with thousands of knock-off 250 GTOs, as prices will still be in sky-high. We've seen this in the past with the Shelby Cobra replicas.

So if you are a current 250 GTO owner, you won't have to worry about someone with only one comma in their bank account passing a 250 GTO replica off as the real thing, as the paper work behind these cars are worth a whole lot more than the metal.  

I think it would be easy to get around any lawsuit by a manufacturer.   Since replicas and kit cars normally have lots of body work involved, simply make the base car that is sold have some gaudy bolted on part that is easily removed that changes a how the car looks.  Similar trick that colin Chapman did with selling cars without engines to get around the taxes.  The replica/kit car manufacturer could even partner with a body shop so the customer that still wants a turn key car can get one.  

Ok so I have been in the kit car world for a loooonnnng time. 

Basically don't call your car the same name as the original and don't berkeley with Ferrari and you are ok. Also don't sell your car with original replica badging as well. 

Also an addendum to Ferrari. If you are an individual builder and do everything yourself and don't make kits and don't put Ferrari badging on your car they are pretty chill. As soon as you mess with the badging or anything that they deem copyright infringment on the name and they will eat you alive. 

How does the YouTube channel "B is for Build" getting their Eleanor Mustang project confiscated fit into this discussion?

Pete

In reply to NOHOME :

I was just thinking of that one.... Sounded like a load of BS, but its done and gone now.

In reply to NOHOME :

Not sure what ground they had to stand on considering that this is a commercially available thing.

I assume this is licensed and they probably get a cut. But if they allow it to be sold they have to know people are gonna buy it and use it right?

Why would anyone put all that time and effort into having a fake anyway?

Everywhere you go, you have to explain "No, it's not a real (X)"

Why bother? Put the effort into building something unique, not a replica. There are plenty of kit cars that aren't a copy of anything.

Interesting feedback so far. One car that I would think would be very popular as a replica would be a 1963 Corvette. Such a beloved car, and now terribly expensive. But you don't see many replica Corvette options.

ShawnG said:

Why would anyone put all that time and effort into having a fake anyway?

Everywhere you go, you have to explain "No, it's not a real (X)"

Why bother? Put the effort into building something unique, not a replica. There are plenty of kit cars that aren't a copy of anything.

Personally, I'd be totally okay with a replica. I'd happily tell people it's a replica, and I couldn't care less what other people think about that. Take the aforementioned Ferrari Daytona used in Miami Vice. That show was hugely popular when I was coming of age and that car left an indelible mark on my developing car brain. I'd be thrilled to have a replica just like it, as I don't have many millions sitting in the bank to buy the real thing.

I'd love a replica, I'd also be ok with a kit car.  Take FFR for instance, a Type 65 Coupe would be my top choice for a replica, an 818 my top choice for a kit car.  I love the nostalgia of one, the looks of both, and capabilities of both.  It's really what a person is into most.

slantvaliant (Forum Supporter) said:

 And, IIRC, one can't copyright a number.

 

I believe you can, and that is the reason we have a Porsche 911 and not a Porsche 901. Peugeot got involved and had them change the model number. 

Also, it depends on the manufacturer. Its very hard or impossible to find a kit of a Mercedes Gullwing or a 300SL roadster, Mercedes has put a tight lid on that design. 

Porsche obviously does not care as you can buy anything from a 356 to a 550 and a 904. 

Someone mentioned "getting a letter from an attorney" - yes this can happen and seems like a big deal. But much of the time things like that are just a troll lawyer who may or may not actually be working for the manufacturer. And many times a reply letter from YOUR troll lawyer explaining why your thing is not an infringement and for them to pound sand is all it takes to make them go away. YMMV.

Donut media did a thing on the B is For Build Elaenor that is pretty comprehensive.  

In reply to Slippery (Forum Supporter) :

I saw a thing that said peugeot owns the rights to 101-901 - all the ending in 01's.  Think it was during the petersen vault tour when they were talking about their porsche 901.

Carroll Shelby wanted Factory Five to donate $1000 per car to  his heart foundation.  This is from a direct quote, by Shelby, in an interview.

 That $1000 would have come straight out of the pocket of each kit buyer.   

This is the same Carroll Shelby who "discovered" a bunch of "old" Cobra chassis in a warehouse that supposedly were built in the 60's and stored.  Methinks he didn't want competition for the sale of these when he built them out.  Speculation was they were not built then but he did file paper work on their serial numbers in the 60's so they were legally old cars.

(I admit I do not know the outcome of this, only the article about it with pictures of stacks of chassis in a warehouse.)

In reply to nocones :

I beg to differ on the "Most Exiting" bit. The old Stang on the new Stang swap is not one that comes out well. always looks like an old body parked on top of another car no matter how much you try to hide the extra tall rocker panel.

B is for build puts some interesting pieces in close proximity to other pieces, and I admire Oscar his fabricator for his wild skills, but I would not want to own any of his projects when they are done.

Ferrari are such dicks about you even changing their cars (see deadmau5 purrari) because apparently everything that leaves their factory is perfect 

So much to cover. Plus I love this stuff. 

So Shelby's attorneys were the ones shaking down people to the best of my knowledge. He was far gone mentally and physically at this stage and he had what I was told were some really shady lawyers. 

There are absolutely Gullwing replicas running around, there are at least two different molds of that car that I know of. Its just a really monstrously difficult build because they only provide the bodies. You have to do everything else. There was someone who was offering tube chassis cars who "shutdown" do to lawsuits. Or he could not provide the cars at the price he said he could and used that as an excuse. It happens a lot in the kit car world. 

Why are there no replica's of "X", lets focus on the 63 corvette. First off I am sure someone has tried, but the biggest issue with kit cars beyond people getting way in over their heads on builds is actually doors/windows. If you look at the successful kits, Cobra's, 356's, 550 spyders, Manx's they are all topless and they don't have glass in the doors.  Look at the few kits that do have tops like the 65 daytona and you will find that they all have fixed windows. Adding doors increases the complexity of the kit almost 25% and the cost. Add in glass that moves in a door and its darn near another 25%. Then the cost, and it never ever looks right. Also Corvettes are way to cheap even 63's to build kits of. It would be much cheaper to buy a ratty running car and work on it over the weekend then to build a kit. 

As for why would would want a fake. Well its easy for me, even if I had the money for a original 550 spyder I would never drive it on the street or track. You are in full caretaker mode on a car like that. I have had both an original 356 speedster and a CSX Cobra as resale cars in the past and I never once took them out except on perfect days and to perfect events where someone was watching the cars at all times. I can leave my replica 550 spyder on the street and get coffee, I can tear up the "paint" at the track. I can put race tires on and wear out components that I can buy at JBugs. If I want to cage it I cut a hole in the body. You simply cannot do that with a original anymore. I have friends who have replica's of there own cars so they can drive them out and about. 

In reply to NOHOME :

Yeah I didn't agree with their assesment of the vehicle as "most exciting".  I watched the videos and thought the whole thing was fairly hacked and wasn't really looking great.  In fact I'm almost Hate Watching the current B is for Build builds (especially the single seat car) as they are really not doing a great job.  I would really like to see someone like them actually build quality cars and present them in that fashion as I find the presentation entertaining.

As I understood it from the body shop world, as long as it isn't an exact copy, there isn't much they can do about it.  If you take a GM fender and make a mold and a stamp that matches every exact detail, you've just made a copy and you're selling GM copies which is a no-no.  But if you change them or make them of your own stamps, you're fine.

Much like the Chinese ripoffs of Edelbrock intakes.  They took an actual Eddy intake and made a mold out of it so they could "steal" Vic's engineering.  No bueno.  If they had instead used precise measurements  and made their own mold, it would be legal.  This was the case with Ford's 8.8" axle which is a complete ripoff of a GM 12-bolt, right down to the same support ribs in the housing.  Ford made their own, so GM knew they didn't have a legal foothold.

In the case of the Cobra replicas, they made a fiberglass mold that simply LOOKs like an AC Ace body, but it isn't.  From what I understand of the Gullwing MB, someone took an actual Gullwing body and made a mold which isn't legal.

Similar fights are being had all the time with the music industry.  You can't copyright a chord or a chord progression.  You can copyright lyrics.  It more or less boils down to establishing intent.

In reply to Curtis73 (Forum Supporter) :

TBH, they just did what Vic did.

The Edelbrock "performer" 4-barrel manifold for Pontiacs is just a copy of the factory piece. Doesn't flow as well either.

We restored a genuine 289 Cobra and the replicas I've seen aren't even close to the real thing. There's huge differences that are really apparent when you put them next to each other.