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TTAB Sustains Opposition to Registration of Carroll Shelby's "Cobra 427 S/C Vehicle Shape" Due to Lack of Acquired Distinctiveness

In a well-reasoned49-page decision, the Board sustained an opposition to registration of the shape of Carroll Shelby's Cobra 427 S/C (shown below) for "automobiles," on the ground that the mark lacks acquired distinctiveness. The Board dismissed Opposer Factory Five's claims of genericness and fraud and found it unnecessary to reach the abandonment issue, since Shelby had no trademark right to abandon. Factory Five Racing, Inc. v. Carroll Shelby and Carroll Hall Shelby Trust, Opposition No. 91150346 (September 13, 2010) [not precedential].Issue Preclusion: The Board began by addressing Opposer 's claim that issue preclusion applies in light of a 2002 decision by the federal courts in Massachusetts that the Shelby design had not acquired distinctiveness...continue to full post

Full post as published by The TTABlog on October 20, 2010 (boomark / email).