Just wondering if anyone has any information about this. I met a guy yesterday named Stephen Antonietti. He tells me that his company was the one involved in the lawsuit brought up by Ferrari that has to do with the rebodies of our little cars. He says that he had to watch as his molds were destroyed! He also claims to have built the Miami Vice Daytonas off of the Corvette. I believe he said that they built 8 or nine of them.
I am trying to find more info. He was extremely knowledgeable about the Fiero, and even claims to be the first to put a V8 into our little beasts. I am going to keep looking into this. He seemed straight up. We shall see.
I know that I am not providing a lot of info here, but I am looking myself.
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The Ferrari Testarossa as seen in the series finale, "Freefall".Main article: Cars in Miami Vice Two automobiles drew a lot of attention in Miami Vice; the Ferrari Daytona and Testarossa. During the first two seasons and two episodes of the third season, Detective Sonny Crockett drove a black 1972 Ferrari Daytona Spyder 365 GTS/4.[36] Actually, the car was not a Ferrari, but a kit replica based on a 1980 Chevrolet Corvette C3 chassis.[37] The car was fitted with Ferrari-shaped body panels by specialty car manufacturer McBurnie.[38] Once the car gained notoriety[37], Enzo Ferrari filed a lawsuit demanding that McBurnie and others cease producing and selling Ferrari replicas, because they were taking his name and styling.[37] As a result, the vehicle lasted until season 3, at which point it was blown to pieces in the season three premiere episode, "When Irish Eyes Are Crying".[36][38] The fake Ferraris were removed from the show, with Enzo Ferrari donating two brand new 1986 Testarossas as replacements.[39]. When Enzo saw the black 'Daytona', he was convinced that it did not stand out in the night-time scenes very well; thus, the new Miami Vice car was produced in white. Ferrari continued this color in production for the Testarossa only.
McBurnie is a US bodywork company mostly known for their replicas of Ferrari Daytona Spyder. The Daytona replicas are based on the Chevrolet Corvette C3 and became very popular because they were featured in the TV series Miami Vice where the main character Sonny Crocket drives a black Daytona Spyder. Ferrari reacted and managed to get McBurnie and other replica manufacturers to stop production.
- Tom Mc Burnie went on to manufacture the 34 Lightning, the RSK550 and a Porsche speedster replica. He is now making cars under his new company Thunder Ranch. As a runner up on Mr. McBurnie's TV fame he also produced the RIOT car as seen on Baywatch. Mr. Mcburnie is still making quality Sports cars. Using the RIOT car he developed Tom partnered with SDSU early on & made a electric RIOT car that has amazing Hybrid technology and Incredible Range. [1] The Rights to the RIOT were Sold to Nathan Wratislaw who is taking the car a new Green Vision of Hybrid Electric Technology. Tom Continues to make 5 different Models of Sports Cars.
Success breeds success and Tom soon builds the Ferrari 365 GTB/4 (Daytona) replica based on a Corvette chassis which soon becomes a centerpiece of the '80s television show "Miami Vice". Additional information on this topic may be found in the book "Daytona" by Pat Braden and Gerald Roush.
[This message has been edited by BlackThunderGT (edited 08-18-2010).]
FERRARI S.p.A. ESERCIZIO FABBRICHE AUTOMOBILI E CORSE, Plaintiff, v. McBURNIE COACHCRAFT, INC., and THOMAS McBURNIE, Defendants. AND RELATED CROSS-ACTIONS
Civil No. 86-1812-B(IEG)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA
1988 U.S. Dist. LEXIS 16314; 10 U.S.P.Q.2D (BNA) 1278
August 31, 1988, Decided and Filed; September 6, 1988, Entered
ORDER GRANTING IN PART AND DENYING PART DEFENDANTS' AND COUNTERCLAIM DEFENDANTS' MOTIONS TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT
RUDI M. BREWSTER, UNITED STATES DISTRICT JUDGE
I. BACKGROUND
Plaintiff Ferrari S.p.A. Esercizio Fabbriche Automobili E Corse ("Ferrari") brought this action against defendants Thomas McBurnie and McBurnie Coachcraft, Inc. ("McBurnie") claiming trademark infringement, false representation and designation of origin, and trade dress infringement under Section 42 of the Lanham Act and under the common law, as well as, related causes of action under California law. Plaintiff's claims arise out of defendants' manufacture of an automobile known as the McBurnie California Daytona Spider. Defendants' automobile resembles the design of an automobile once manufactured by Ferrari known as the Ferrari Daytona Spider.
Defendants brought a counterclaim against the original plaintiff and added counterclaim defendants Ferrari of North America ("Fiat N.A.") and Fiat S.p.A.. Click for Enhanced Coverage Linking Searches The counterclaim alleges conspiracy to monopolize, in violation of Section 2 of the Sherman Act and the California Cartright Act, restraint of trade in violation of Section 3 [*2] of the Sherman Act, unfair competition, and several other related state law claims.
Ferrari introduced the Daytona Spider in Europe in 1969. Ferrari manufactured 127 models of the Daytona Spider until 1974 when Ferrari ceased to manufacture this body design. Of the 127 manufactured, 69 were sold in the United States.
In 1980, McBurnie and Albert Mardikian decided to produce a replica of the Ferrari Daytona Spider. Mardikian entered into a contractual agreement with McBurnie whereby McBurnie agreed to produce a specialty car called the Mardikian" for Mardikian's company Trend Imports. Mardikian delivered a genuine Ferrari Daytona Spider to McBurnie, from which McBurnie produced molds of the car. McBurnie reproduced the body design in fiberglass, relying in part on the molds, and fitted the body onto a Corvette chassis. The first such Mardikian vehicle was completed in February, 1982.
In 1984, Mardikian entered into an agreement with Universal City Studios, Click for Enhanced Coverage Linking Searches producer of the television show "Miami Vice", to lease two "Mardikian" vehicles for use on the television show. The Ferrari replica was used until 1986 when the "Mardikian" vehicle was replaced by a current model Ferrari known as [*3] the Testarossa.
The facts are vague as to the reason for discontinuing the use of the Mardikian vehicle. Ferrari N.A. was approached by the Miami Vice production staff regarding the use of the Testarossa. At the same time, Ferrari N.A. found out that the Miami Vice production staff was using the Mardikian vehicle with Ferrari emblems attached to the outside of the vehicle in their television program. Subsequently, Universal City Studios Click for Enhanced Coverage Linking Searchesand Ferrari N.A. entered into an agreement whereby Ferrari N.A. agreed to lease two Testarossas to Universal City Studios Click for Enhanced Coverage Linking Searchesfor promotional consideration on the Miami Vice television program, and Universal City Studios Click for Enhanced Coverage Linking Searchesagreed, among other things, not to use any Ferrari replicas during the term of the lease.
Sometime in 1983, McBurnie ended his relationship with Mardikian. It appears that Mardikian's company went bankrupt and was unable to pay McBurnie for the cost of producing the Mardikian vehicle. In June, 1984, McBurnie produced the first of his own McBurnie California Daytona Spiders. McBurnie began to advertise and sell the cars in the form of a completed "turn-key" model or in kit form. Until the time Miami Vice substituted the new Ferrari Testarossa [*4] for the Mardikian vehicle, calls regarding the Mardikian were forwarded from Miami Vice to McBurnie.
In several advertisements and at several trade shows, McBurnie displayed the California Daytona Spider with Ferrari trademarks attached thereto. In 1985, McBurnie was contacted by lawyers from Ferrari who instructed McBurnie to cease placing Ferrari emblems and badges on his cars. In 1986, this lawsuit was filed charging McBurnie with trademark and trade dress infringement, in addition to the various other pendent claims.
On July 25, 1988, the court heard defendants' and counterclaim defendants' motions to dismiss or, in the alternative, for summary judgment.
II. ANALYSIS
A. Defendants' Motion to Dismiss, or in the alternative, for Summary Judgment
Defendants seek to dismiss, under Fed. R. Civ. P. 12(b)(6), or in the alternative, summary judgment under Fed. R. Civ. P. 56, Counts I, II, V, and VII of plaintiff's complaint.
1. Count I: Trademark Infringement
Count I of plaintiff's complaint alleges McBurnie infringed plaintiff's registered trademarks FERRARI and the "Prancing Horse Logo" in violation of § 32(1) of the Lanham Act, 15 U.S.C. § 1114(1), and the common law.
Clearly, [*5] there is evidence indicating McBurnie used the Ferrari registered trademarks without Ferrari's permission. Plaintiff alleges McBurnie used the Ferrari trademarks in the form of decals on the McBurnie vehicles and in the literature used to advertise the McBurnie vehicle. In addition, plaintiff claims that McBurnie separately offered for sale the trademarked logos for use by his customers on the McBurnie vehicle.
McBurnie admits to having used the Ferrari trademarked decals at one tradeshow in Las Vegas in June, 1984; however, McBurnie contends that no further use of the trademarked logos occurred. McBurnie disputes any allegation that he separately sold customers the Ferrari logos for placement on his vehicle. There is sufficient evidence to create a genuine issue of material fact as to the extent of McBurnie's unauthorized use of the Ferrari registered trademarks.
Defendants argue that summary judgment is appropriate as to this cause of action because, although there was unauthorized use, there is no competition between the parties and no likelihood of confusion by the purchasing public. HN1Go to the description of this Headnote.Section 32(1) of the Lanham Act, 15 U.S.C. § 1114(1), governs lawsuits for the infringement of [*6] a federally registered trademark. It provides that any person is liable for infringement if, without the consent of the registrant, they use in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered mark" which "is likely to cause confusion, or to cause mistake, or to deceive.
Certainly, there is sufficient evidence that McBurnie used copies of the Ferrari trademarked name and "Prancing Horse Logo" in advertising the McBurnie vehicle without Ferrari's consent Furthermore, there is sufficient evidence indicating Ferrari and McBurnie both compete in the "limited production specialty-sports cars" market.
In addition, there is sufficient evidence that the use of the FERRARI and "Prancing Horse Logo" on the McBurnie vehicle is likely to cause confusion or deceive the public. The Fifth Circuit identified a number of factors which should be considered when analyzing whether there is a likelihood of confusion between two marks. HN2Go to the description of this Headnote.Among the factors are the type of trademark, the similarity of design, the similarity of the product, the identity of purchasers, defendant's intent, and actual confusion. [*7] Exxon Corp. v. Texas Motor Exchange, 628 F.2d 500, 504 (5th Cir. 1980); John A. Harland Co. v. Clarke Checks, Inc., 711 F.2d 966, 972 (9th Cir. 1983).
Defendants focus on the initial sale of the McBurnie vehicle and argue that with respect to the immediate transactions, there is no likelihood of confusion. Defendants argue that the sophisticated purchaser of a Ferrari vehicle is not deceived into thinking that a McBurnie vehicle with Ferrari logos is actually a Ferrari vehicle.
HN3Go to the description of this Headnote.However, likelihood of confusion need not merely involve that of a sophisticated potential purchaser of the vehicle. The Lanham Act endeavors to prevent mistake, deception, and confusion in the market place at large. See Rolex Watch U.S.A. v. Canner, 645 F. Supp. 484, 492 (S.D. Fla. 1986). The consuming public might examine the McBurnie vehicle, believing it to be a genuine Ferrari and be unimpressed with the quality of the item. Consequently, consumers might be inhibited from purchasing a genuine Ferrari.
Furthermore, HN4Go to the description of this Headnote.in determining whether confusion exists the court must take into account the subjective intent of the defendants. If a plaintiff can show that a defendant adopted a mark with the intent of deriving benefit from the reputation of the plaintiff, [*8] that fact alone may be sufficient to justify the inference that there is confusing similarity. Exxon v. Texas Motor Exchange, 628 F.2d at 506 (quoting Restatement of Torts § 729, Comment (f) (1938). Ferrari never authorized these defendants to offer for sale the McBurnie vehicle with Ferrari trademarked logos. By selling and advertising the vehicle with Ferrari logos, the only inference to be drawn is that defendants intended to derive benefit from the plaintiff's reputation.
HN5Go to the description of this Headnote.The issue of likelihood of confusion is a question of fact. Hang Ten Int'l v. Sherry Mfg. Co., Inc., 498 F.2d 326 (5th Cir. 1974). Since defendants fail to demonstrate an absence of any genuine issues of material fact with regard to likelihood confusion, summary judgment for defendants must be denied.
2. Count II: Trade Dress Infringement
Plaintiff alleges that the body style of the Ferrari Daytona Spider, as distinguished from the Ferrari logos, can qualify as protectable trade dress under the Lanham Act, 15 U.S.C. § 1127. Defendants argue that plaintiff's body style is not entitled to trade dress protection. In addition, defendants argue that even if a car's body style is protectable as trade dress, [*9] plaintiff has long since abandoned this property interest by ceasing production of the vehicle without any intent to resume production.
HN6Go to the description of this Headnote.In order to state a claim for trade dress infringement under Section 43 of the Lanham Act, the common law, or the law of unfair competition, plaintiff must demonstrate that its trade dress: (1) is protectable, (2) is non functional, (3) has acquired secondary meaning, and (4) is likely to cause confusion among customers. First Brands Corporation v. Fred Meyer, Inc., 809 F.2d 1378, 1381 (9th Cir. 1987).
The court has determined that plaintiff's body design is primarily non-functional, has acquired secondary meaning, and is likely to cause confusion among customers. In addition, the court finds that genuine issues of material fact exist as to whether plaintiff's trade dress rights are protectable.
HN7Go to the description of this Headnote.Under the Lanham Act, a trade dress is not protectable if it has been abandoned. A trade dress is deemed to be abandoned when its use has been discontinued with intent not to resume use. 15 U.S.C. § 1127. Prima facie evidence of abandonment occurs where there are two consecutive years of nonuse. 15 U.S.C. § 1127. The burden of proof is on the party claiming [*10] abandonment, but when a prima facie case of trade dress abandonment exists because of nonuse for over two years, the owner of the mark has the burden to demonstrate that circumstances do not justify the inference of intent not to resume use. Exxon Corp. v. Humble Exploration Co., 695 F.2d 96, 99 (5th cir. 1983).
It is undisputed that Ferrari has not manufactured the Ferrari Daytona Spider body style for over 13 consecutive years. It is also undisputed that Ferrari has no plans to resume manufacturing this vehicle ever again. However, there is a genuine issue of material fact as to the abandonment issue because Ferrari has presented evidence of good will associated with the vehicle and evidence of ongoing parts support for the vehicle. If true, these two facts could be sufficient for the trier of fact to find nonabandonment of trade dress rights. See American Motors v. Action Age, Inc., 178 U.S.P.Q. (BNA) 377 (TTAB 1973).
3. Count V: State Statutory Unfair Competition
Count V of plaintiff's complaint alleges a violation of California statutory unfair competition, Cal. Bus. & Prof. Code § 17200 et seq., based on trademark and trade dress infringement.
Defendants argue [*11] that the unfair competition claim must fall if the trademark and trade dress causes of action are dismissed. However, since the court is not dismissing either of these two causes of action, the court must deny defendants' motion to dismiss the cause of action for unfair competition.
4. Count VII: California Anti-Mold Statute
Defendants seek to dismiss Count VII of Ferrari's complaint for violation of the California "Anti-Mold" Statute, Cal. Bus. & Prof. Code § 17300 et seq. ("Anti-Mold Statute") or, in the alternative, for summary judgment.
The Anti-Mold Statute states as follows:
(a) It shall be unlawful for any person to duplicate for the purpose of sale any manufactured item made by another without the permission of that other person using the direct molding process described in subdivision (c).
(b) It shall be unlawful for any person to sell an item duplicated in violation of subdivision (a).
(c) The direct molding processes subject to this section is any direct molding process in which the original manufactured item was itself used as a plug for the making of the mold which is used to manufacture the duplicate item.
The central question with regard to this cause [*12] of action is whether, within the meaning of the statute, McBurnie has used a Ferrari "plug" in a direct molding process which yielded a mold used in the manufacture of the McBurnie vehicle.
McBurnie contends that he did not use splash molds taken from the original Ferrari Daytona to directly manufacture or create his cars, and the McBurnie cars are not duplicate copies of the original Ferrari Daytona Spider. Defendants offer evidence in the form of a Declaration from McBurnie which states that McBurnie made splash molds of the original Ferrari Daytona Spider. McBurnie further states that the original splash-molded parts were cut and modified to conform to the Corvette chassis. Defendants argue that the Anti-Mold statute does not apply where splash molds are only used in part to create a similar product. In addition, defendants argue that the Corvette chassis differed somewhat from the Ferrari chassis, and McBurnie did not create a "duplicate" product as required under the Anti-Mold statute.
There is no question that McBurnie made a splash-mold of the Ferrari Daytona Spider. In his Declaration, McBurnie admits that some of the pieces of this splash-mold were directly fitted with [*13] other body parts to create the McBurnie vehicle. In Brahma, Inc. v. Joe Yeargain, Inc., 665 F. Supp. 1447 (N.D. Cal. 1987), the court tried to determine if defendant violated the Anti-Mold statute when it manufactured a product which was partially made using the plaintiff's shell as a plug. After reviewing the text of the statute and legislative history, the court determined that the focus of its inquiry should not be whether the defendant partially used the plaintiff's shell. Rather, the focus should be "whether by using [plaintiff's] shell to create its mold [defendant] obtained an unfair competitive advantage by avoiding otherwise necessary development costs. Id. at 1452.
In this case, as in Brahma v. Joe Yeargain, defendants' motion to dismiss or for summary judgment must be denied on the grounds that plaintiff has established a prima facie violation of § 17300. McBurnie admits in his Declaration and Deposition that he used the Ferrari Daytona Spider as a plug, and he describes how that process was done. In addition, there is a genuine issue of material fact regarding whether defendant obtained a competitive advantage by using the Daytona Spider body mold. Therefore, [*14] defendants' motion to dismiss or for summary judgment must be denied.
B. Defendants' Motion to Dismiss Treble Damages, Punitive Damages, and Attorney's Fees
Plaintiff's prayer for relief makes a general request for treble damages, punitive damages, and attorney's fees.
1. Lanham Act Causes of Action
In the First Amended Complaint, plaintiff has three Lanham Act causes of action. Count I alleges federal statutory trademark infringement. Count II alleges federal statutory trade dress infringement. Finally, Count III alleges federal statutory contributory infringement of trade dress.
HN8Go to the description of this Headnote.In order to recover treble damages under the Lanham Act, plaintiff must allege fraudulent or willful infringement. Polo Fashions, Inc. v. Gentlemen's Corner Wholesale, Inc., 221 U.S.P.Q. 147, 148 (D.S.C. 1983). plaintiff has sufficiently pled willful infringement of Ferrari's registered trademarks under the Lanham Act to sustain an award of treble damages. In paragraphs 22-29, plaintiff alleges McBurnie is knowingly selling and advertising the California Daytona Spider bearing the Ferrari registered logos. This conduct is sufficiently willful to entitled Ferrari to an award of treble damages.
[*15] In the Ninth Circuit, HN9Go to the description of this Headnote.attorney's fees are available under the Lanham Act in exceptional cases such as in infringement cases where the acts of infringement can be characterized as "malicious," "fraudulent," "deliberate," or willful." United States v. DeLuca, 692 F.2d 1277 (9th Cir. 1982). In this case, plaintiff has adequately pled willful and intentional infringement of plaintiff's registered trademarks sufficient to sustain a prayer for attorney's fees on the Lanham causes of action.
2. California Statutory Causes of Action
HN10Go to the description of this Headnote.Cal. Bus. & Prof. Code § 17200 et seq., which prohibits unfair business practices or false advertising, does not provide for a punitive or exemplary remedy. Therefore, plaintiff is not entitled to punitive or treble damages in Count V of its complaint.
HN11Go to the description of this Headnote.Cal. Bus. & Prof. Code § 14340, which prohibits state trademark infringement, provides for the recovery of treble profits and damages for the "wrongful" infringement of a registered trademark. Entitlement to punitive or treble damages requires proof of fraudulent conduct or intentional misrepresentation. Plaintiff has adequately pled facts indicating McBurnie will fully and intentionally used the Ferrari [*16] registered trademarks without permission to sustain an award of treble damages. Therefore, treble damages are appropriate in Count VI of plaintiff's complaint.
HN12Go to the description of this Headnote.Cal. Bus. and Prof. Code § 173300, the Anit-Mold statute, does not provide for an award of punitive or exemplary damages. Therefore, plaintiff is not entitled to punitive damages in Count VII of its complaint. However, this statute does authorize the awarding of attorney's fees.
3. Common Law Causes of Action
In order to receive punitive damages in common law causes of action, plaintiff must allege facts sufficient to show the defendant has been guilty of oppression, fraud, or malice. Cal. Civ. Code § 3294. In the First Amended Complaint, Ferrari alleges two common law causes of action. Count IV alleges common law trademark infringement, and Count VIII alleges common law unfair competition. These two causes of action, together with the incorporated paragraphs, allege in sufficient detail McBurnie's intentional infringement of plaintiff's trademark and trade dress rights to sustain an award of punitive damages.
C. Counterclaim Defendants' Motion to Dismiss or for Summary Judgment
Counterclaim defendants seek to dismiss [*17] all eight counts of the counterclaim under Fed. R. Civ. P. 12(b)(6) or, in the alternative, for summary judgment under Fed. R. Civ. P. 56.
1. Count I: Attempt to Monopolize
Count I of defendants' counterclaim alleges that the counterclaim defendants violated Section 2 of the Sherman Act, 16 U.S.C. § 2, by conspiring to monopolize the "specialty limited-production sports car market"; and that in furtherance of this conspiracy, Ferrari instituted sham trade dress litigation against defendants and others.
HN13Go to the description of this Headnote.The elements necessary to make out a Section 2 claim are as follows:
(1) specific intent to control prices or destroy competition in the relevant market;
(2) predatory or anticompetitive conduct directed to accomplishing the unlawful purpose; and
(3) a dangerous probability of success.
Foremost Pro Color, Inc. v. Eastman Kodak Co., 703 F.2d 534, 543-44 (9th Cir. 1983).
a. Specific Intent. Counterclaim defendants argue that McBurnie failed to articulate the relevant market, failed to show that Ferrari and McBurnie competed in this relevant market, and failed to show specific intent to control prices.
Defendants claim that the relevant market is the specialty limited-production [*18] sports cars" market. This definition of relevant market is sufficient to support counterclaim defendants' Section 2 claim.
In addition, there is evidence of direct competition between the two car producers. The Declaration of T. McBurnie documents the financial losses he sustained as a result of Ferrari's actions in instituting the present lawsuit and forcing the removal of his vehicles from the Miami Vice television program.
However, counterclaimants have failed to show any specific intent to monopolize this particular market. McBurnie argues that Ferrari's filing of this present action is a form of "sham litigation" which is evidence of specific intent to monopolize.
HN14Go to the description of this Headnote.Specific intent to monopolize can be inferred from a finding of bad faith. CVD, Inc. v. Raytheon Company, 769 F.2d 842, 851 (1st Cir. 1985), cert. denied, 475 U.S. 1016 (1986), citing Handgards, Inc. v. Ethicon, Inc., 743 F.2d 1282, 1293 (9th Cir. 1984). Bad faith, in the context of patent or trade dress infringement suits, has been defined as commencing litigation knowing that the particular patent or trade dress sought to be enforced is invalid. [*19] Handgards, Inc. v. Ethicon, 601 F.2d 986, 990 (9th Cir. 1979), cert. denied, 444 U.S. 1025 (1980).
Although counterclaimants allege Ferrari instituted the present "trade dress" litigation as a sham, they provide no evidence in support of this theory. In fact, Ferrari's suit alleges both trademark and trade dress infringement, and the trademark allegations do have merit, as evidenced by the fact that summary judgment was denied as to the allegations of trademark and trade dress in fringement. Thus, counterclaimants fail to provide sufficient evidence of specific intent to monopolize to support their Section 2 claim.
b. Predatory or Anticompetitive Conduct. HN15Go to the description of this Headnote.Predatory conduct includes conduct amounting to a substantial claim of restraint of trade or conduct clearly threatening to competition or exclusionary. Aurora Enterprises v. National Broadcasting Co., 688 F.2d 695 (9th Cir. 1982). McBurnie argues that Ferrari's initiation of sham litigation, given the size and market power of Ferrari, is evidence of predatory conduct.
However, as indicated above, there is no evidence that Ferrari's action can be considered sham litigation. Counterclaimants fail to provide sufficient evidence of predatory or anticompetitive conduct to support [*20] their Section 2 claim.
3. Dangerous Probability of Success. When a claimant alleges conduct which is not clearly threatening to competition or clearly exclusionary, the dangerous probability of success element becomes highly relevant in establishing an attempt to monopolize claim under Section 2 of the Sherman Act.
HN16Go to the description of this Headnote.A claimant establishes dangerous probability of success through a showing of market power. Hunt-Wesson Foods, Inc. v. Ragu Foods, Inc., 627 F.2d 919, 925 (9th Cir. 1980). However, counterclaimants fail to cite facts indicating Ferrari holds market power in the "limited production specialty-sports car" market.
Since counterclaimants failed to provide facts sufficient to demonstrate that the three elements necessary to make out a Section 2 claim are present, counterclaim defendants' motion for summary judgment must be granted.
2. Count II: The Cartwright Act
Defendants allege Ferrari violated Cal. Bus. & Prof. Code § 16600 et seq. & Cal. Bus. & Prof. Code § 16720 et seq., the Cartwright Act, by conspiring to monopolize the sale of "limited production specialty-sport cars" when it supplied Ferrari vehicles to the Miami Vice television show.
a. Section 16720. HN17Go to the description of this Headnote. [*21] Section 16720 of the Cartwright Act prohibits acts by two or more persons to prevent competition in the manufacture, sale, or purchase of goods or commodities. Cal. Bus. & Prof. Code § 16720. California courts require a claimant to allege the formation and operation of the conspiracy, illegal acts done pursuant to the conspiracy, a purpose to restrain trade, and damages resulting from the illegal acts. Jones v. H.F. Ahmanson & Co., 1 Cal. 3d 93, 119 (1969).
McBurnie fails to provide evidence that Ferrari conspired to monopolize the "limited production specialty-sports car" market. McBurnie argues that Ferrari N.A. (the U.S. distribution company) and Ferrari S.p.A. (the parent holding company) conspired to monopolize the market by (1) filing sham ligitation (Ferrari S.p.A.) and, at the same time, (2) entering into exclusive dealing contracts (Ferrari N.A.). However, McBurnie fails to provide evidence that these two actions were undertaken as part of a conspiracy to monopolize. There is no evidence of any agreements or discussions between these separate entities regarding a conspiracy to monopolize. Therefore, counterclaim defendants' motion for summary judgment as to the [*22] Section 16720 claim must be granted.
b. Section 16660. HN18Go to the description of this Headnote.Cal. Bus. & Prof. Code § 16660 prohibits exclusive dealing contracts whose effect may be to "substantially lessen competition or tend to create a monopoly in any line of trade or commerce." Cal. Bus. & Prof. Code § 16660. McBurnie has provided sufficient facts to support the § 16660 claim. The 16660 claim revolves around an agreement between Universal City Studios Click for Enhanced Coverage Linking Searchesand Albert Mardikian whereby Mardikian agreed to furnish to Miami Vice production company two California Daytona Spiders for lease and eventual sale. McBurnie provides facts to support his allegations that an oral agreement existed between Miami Vice and himself after Mardikian stopped producing the California Daytona Spider that Miami Vice would forward customer inquires about the California Daytona to McBurnie.
McBurnie also supports his allegations that Ferrari deliberately attempted to interfere with this relationship by, among other things, providing Miami Vice with a Ferrari automobile on the express condition that they cease using the McBurnie vehicle. Although Ferrari argues there are legitimate, non-monopolistic reasons for inserting such a clause in the agreement, [*23] the existence of this agreement, in addition to the Deposition of John Gorrien, employee of Ferrari N.A., creates a genuine issue of material fact regarding the subjective intent of Ferrari in furnishing its vehicles to the Miami Vice production team. Further evidence of Ferrari's bad faith can be inferred from the fact that Ferrari agreed to furnish the vehicles for promotional consideration only, after representations were made by Ferrari N.A. that no Ferrari Daytona Spiders were available for sale or lease at the time.
The combination of these factors create a genuine issue of material fact regarding whether counterclaim defendants violated the exclusive dealing prohibition set forth in § 16660. Thus, counterclaim defendants' motion to dismiss or for summary judgment must be denied.
3. Count III: Intentional Interference with Prospective Economic Advantage
HN19Go to the description of this Headnote.In order to state a claim for interference with prospective economic advantage, counterclaimants must prove the following:
(1) an economic relationship between defendants and a third party;
(2) knowledge by counterclaim defendants of the existence of this economic relationship;
(3) intentional acts by a counterclaim defendant [*24] to disrupt this economic relationship;
(4) actual disruption of this economic relationship; and
(5) damages to defendants caused by the counterclaim defendants' disruptive acts.
Blank v. Kirwan, 39 Cal. 3d 311, 330 (1985).
McBurnie alleges that Ferrari's filing of sham litigation and its conditional agreement to furnish Ferraris to the Miami Vice television show constitute intentional acts designed to disrupt McBurnie's economic relationship with the Miami Vice television program.
As indicated above, McBurnie has adequately set forth facts demonstrating the existence of an economic relationship between McBurnie and Universal City Studios. Click for Enhanced Coverage Linking Searches It is not necessary that a legally binding agreement exist in order to recover for interference with prospective economic advantage. HN20Go to the description of this Headnote.There must only be a potential for the alleged relationship to ripen into a contact. Buckaloo v. Johnson, 122 Cal. Rptr. 745, 753, n.7 (1975).
There is sufficient evidence that Miami Vice producers knew that McBurnie was producing the California Daytona Spider in place of Mardikian. There is also sufficient evidence that Ferrari knew about McBurnie's production of the vehicle and the agreement between [*25] Mardikian and Universal City Studios. Click for Enhanced Coverage Linking Searches In addition, there is evidence to demonstrate Ferrari intentionally interfered with this relationship by entering into a conditional agreement with Universal City Studios Click for Enhanced Coverage Linking Searchesto substitute genuine Ferraris for Mardikian's vehicles. This agreement between Universal City Studios Click for Enhanced Coverage Linking Searchesand Ferrari could have resulted in damage to McBurnie in the form of lost publicity and, as a result, lost sales.
Counterclaim defendants' motion for summary judgment must be denied because a genuine issue of material fact exists as to counterclaim defendants' intentional interference with McBurnie's prospective economic advantage.
4. Count IV: Clayton Act Violation
McBurnie alleges that Ferrari's conditional agreement to provide University City Studios' production company, Miami Vice, with one or more Ferrari automobiles is conduct in restraint of trade in violation of Section 3 of the Clayton Act, 15 U.S.C. § 14. HN21Go to the description of this Headnote.Section 3 of the Clayton Act provides:
It shall be unlawful for any person engaged in commerce . . . to lease or make a sale or contract for sale of goods . . . on the condition, agreement or understanding that the lessee or purchaser thereof shall not use or [*26] deal in the goods . . . of a competitor or competitors of the lessor or seller, where the effect of such lease or sale may be to substantially lessen competition or tend to create a monopoly in any line of commerce.
Ferrari makes the following three arguments in support of their motion for summary judgment: (1) counterclaim defendants failed to make any showing that they are competitors of Ferrari; (2) counterclaim defendants failed to show how exclusion of McBurnie will substantially lessen competition; and (3) counterclaim defendants failed to show why Ferrari's agreement with Miami Vice constitutes an unreasonable restraint of trade.
As previously discussed, McBurnie sufficiently demonstrated it competes with Ferrari in the relevant market and the agreement between Universal City Studios Click for Enhanced Coverage Linking Searchesand Ferrari could be considered an exclusive dealing agreement. In addition, McBurnie argues that the Universal City Studios Click for Enhanced Coverage Linking Searchesagreement eliminated market exposure and sales. Counterclaim defendants fail to show why interference with this one contractual relationship could not have the effect of substantially lessening competition.
The Supreme Court indicated that HN22Go to the description of this Headnote.a rigorous standard of review should [*27] be applied to dismissals of antitrust complaints, a standard especially appropriate in such cases because proof is often in the hands of the defendants. Hospital Building Co. v. Trustees of Rex Hospital, 425 U.S. 738, 746 (1976); Energy Conservation, Inc. v. Heliodyne, Inc., 698 F.2d 386 (9th Cir. 1983).
Since counterclaim defendants fail to provide support for their contention that no lessening of competition occurred, a genuine issue of material fact remains, and summary judgment for counterclaim defendants must be denied.
5. Count V: Unfair Competition
McBurnie alleges that Ferrari engaged in unfair, fraudulent or deceptive business practices deliberately designed to drive McBurnie out of business in violation of the California unfair competition statute, Cal. Bus. & Prof. Code § 17200.
As discussed above, Ferrari's conditional agreement with Universal City Studios Click for Enhanced Coverage Linking Searchescould be deemed an unlawful restraint of trade in that it has the effect of substantially lessening competition or creating a monopoly. In addition, the agreement could be deemed unlawful under the unfair competition statute because it could be an intentional interference with prospective economic advantage. [*28] As indicated in the agreement between Universal City Studios Click for Enhanced Coverage Linking Searchesand Ferrari N.A., the Ferrari Testarossas were supplied to Miami Vice for promotional consideration only. Since there is a genuine issue of material fact as to whether this agreement constituted an intentional interference with prospective economic advantage, summary judgment for counterclaim defendants must be denied.
6. Count VI: Unfair Trade Practices
Count VI of defendants' counterclaim is based on violations of Sections 17043 and 17046 of California's Unfair Practices Act. HN23Go to the description of this Headnote.Section 17043 prohibits the sale below cost or giving away of any article or product for the purpose of injuring competitors or destroying competition Cal. Bus. & Prof. Code § 17043. Section 17046 further prohibits the use of threats, intimidation, or boycotts to effectuate such a purpose. Cal. Bus. & Prof. Code § 17043.
The court must grant Ferrari's motion for summary judgment as to this cause of action. Ferrari's conditional agreement with Universal City Studios Click for Enhanced Coverage Linking Searcheswas an agreement to lease two Ferrari Testarossa vehicles. Section 17043 could not have been violated because this Section only prohibits the "sale" or "giving away" of a product. Thus, [*29] summary judgment as a matter of law for counterclaim defendants as to the cause of action under § 17043 must be granted.
Furthermore, Section 17046 merely prohibits use of any threats, intimidations, or boycotts to effectuate a violation of § 17043. Since violation of § 17046 is conditioned on finding a violation of § 17043, summary judgment for counterclaim defendants as to the § 17046 claim must also be granted.
7. Count VII: Civil Conspiracy
In Count VII, McBurnie alleges that the counterclaim defendants conspired to deny McBurnie the benefit of the Universal City Studios Click for Enhanced Coverage Linking Searchesdeal, and, in addition, conspired to initiate sham litigation against McBurnie. HN24Go to the description of this Headnote.In order to state a claim for civil conspiracy, the counterclaim must allege facts showing the formation and operation of a conspiracy and must state facts showing that a civil wrong was done resulting in damage. Unruh v. Truck Insurance Exchange, 7 Cal. 3d 616, 631 (1972).
As earlier discussed, McBurnie failed to allege facts sufficient to demonstrate a genuine issue of material fact exists as to the formation of conspiracy. There is no evidence indicating collusion between Ferrari N.A. and Ferrari S.p.A. other than the [*30] broad allegations in McBurnie's counterclaim. Therefore, summary judgment for counterclaim defendants as to this civil conspiracy cause of action must be granted.
8. Count VIII: Abuse of Process
In this cause of action, McBurnie alleges that Ferrari initiated sham trade dress litigation against it in bad faith and for the purpose of eliminating its competition in the limited production specialty-sports car market, with knowledge that the action was without merit. HN25Go to the description of this Headnote.The elements of a claim for abuse of process are: (1) an ulterior motive; and (2) a willful act in the use of the process not proper in the regular conduct of the proceeding. Ion Equipment Corp. v. Nelson, 110 Cal. Ap. 3d 868, 876 (1980).
The court recognized the non-sham nature of Ferrari's filing of the present action when it refused to grant defendants' motion for summary judgment as to plaintiff's trademark and trade dress causes of action. Since counterclaimants base this cause of action on a finding that counterclaim defendants' litigation was a sham, the court must grant counterclaim defendants' motion for summary judgment as a matter of law because no genuine issue of material fact remains.
9. Severance
Ferrari [*31] argues that the court should sever the complaint and counterclaim and have separate trials, with the trial of Ferrari's complaint initially. The court denies counterclaim defendants' motion for severance.
FERRARI S.p.A. ESERCIZIO FABBRICHE AUTOMOBILI e CORSE, Plaintiff, v. THOMAS W. McBURNIE and McBURNIE COACHCRAFT, INC., Defendants AND RELATED CROSS-ACTIONS
Civil No. 86-1812-B(IEG)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA
1989 U.S. Dist. LEXIS 13442; 11 U.S.P.Q.2D (BNA) 1843
SETTLED FINDINGS OF FACT AND CONCLUSIONS OF LAW
RUDI M. BREWSTER, UNITED STATES DISTRICT JUDGE
The court, having tried this injunction case with an advisory jury, and having heard all the evidence and arguments of counsel for both sides, and having reviewed plaintiff's proposed Findings of Fact and Conclusions of Law, and having received no objections by defendants, and being fully advised in the premises therefor, now enters the following Settled Findings of Fact and Conclusions of Law.
FINDINGS OF FACT
A. PARTIES AND JURISDICTION
1. Plaintiff, Ferrari S.p.A. Esercizio Fabbriche Automobili e Corse (hereinafter "Ferrari"), is an Italian corporation having a principal place of business at Modena, Italy.
Support: Pretrial Order: Admitted Fact No. 1
2. Plaintiff is in the business of manufacturing uniquely designed, high performance sports cars in limited quantities.
Support: Matteoni Transcript 1 V-48, lines 20-24; p.49, lines 10-15; p.50, line 16 through p.51, line 2; McCormack Transcript III-49, lines 18-20, 25, III-50, lines 1-5.
FOOTNOTES
1 References to the record are by name of witness followed by volume number and page.
3. Defendant Thomas W. McBurnie [*2] is an individual doing business in Santee, California, and is the sole shareholder, owner, and President of defendant McBurnie Coachcraft, Inc.
Support: Pretrial Order: Admitted Fact No. 3
4. Defendant McBurnie Coachcraft, Inc., (hereinafter with defendant Thomas W. McBurnie collectively called "the McBurnie defendants") is a California corporation having a principal place of business in Santee, California.
Support: Pretrial Order: Admitted Fact No. 2
5. The McBurnie defendants specialize in manufacturing kits and completed cars which are called the California Daytona Spyder. The court finds that they are close copies or replications of Ferrari automobiles which ceased to be manufactured in 1974.
Support: Pretrial Order: Admitted Fact No. 6; Exh. 62; 38(4) para. 34; P-4; Transcript of April 19, 1989 (hereinafter referred to as "Transcript of Decision"), p.4., lines 11-15; McBurnie Transcript III-83, lines 8-23; III-153, lines 3-8.
B. BACKGROUND FACTS
6. In approximately 1966, Ferrari began building a new high-powered V 12 automobile engine and commissioned Pininfarina, a celebrated Italian firm, to assist in the design of a unique, distinctive, and beautiful [*3] body design to be used in connection with the new engine.
Support: Bellei Transcript VIII-107, line 7 through p.109, line 25; VIII-110, line 11 through p.111, line 2; VIII-111, lines 6-17; Matteoni Transcript V-51, lines 6-20.
7. After two years of work, the design was completed, and production of the car, called the 365 GTB/4 by Ferrari, began.
Support: Bellei Transcript VIII-109, lines 10-25.
8. From 1969 to 1974 Ferrari manufactured approximately 1,400 Berlinettas (coupes) and 127 Spyders (convertibles). The 365 GTB/4 was an outstanding racing success, including victories at the Daytona Florida racing track. As a result, the car was popularly known among car enthusiasts as the DAYTONA SPYDER.
Support: Pretrial Order: Admitted Fact No. 5; McCormack Transcript II-51, lines 8-17; Matteoni Transcript V-51, line 21 through p. 52, line 4; V-54, lines 14-16; V-96, lines 11-12.
C. NON-FUNCTIONALITY
9. It is clear and without dispute that the Ferrari DAYTONA SPYDER design was primarily made for aesthetic reasons and that the same function could have been achieved by an endless variety of designs. For this reason, the court finds that the design in question is primarily [*4] non-functional.
Support: Transcript of Decision, p.3, lines 10-14; Bellei Transcript VIII-110, lines 23 through p.111, line 5.
10. The design of the Ferrari DAYTONA SPYDER is unique and distinctive, and even defendants' witnesses admitted that no other car design was, or is, very close.
Support: Transcript of Decision, p.3, lines 12-13; Gerstenberger Transcript VIII-163, line 11 through p.164, line 2; VIII-162, lines 20-23; Bellei Transcript VIII-111, lines 15-17. McBurnie Transcript III-168, lines 5-8.
11. The design of the Daytona Spyder is very beautiful as also admitted by defendants' witnesses. Numerous magazines and books have, from 1969 to the present, commented on the great beauty of this car.
12. Although the number of sales of the Ferrari DAYTONA SYPDER were relatively limited, the publicity about this car is extensive, including the numerous magazine and newspaper articles written about it from 1969 to the present. In fact, at least three books have [*5] been written about the Ferrari DAYTONA SPYDER alone from 1982 to the present; and it has been mentioned along with photographs in numerous other books. The articles and books have been extremely complimentary about this beautiful car design and have positively and exclusively associated it with plaintiff Ferrari.
13a. Publicity about the Ferrari DAYTONA SPYDER was also initially generated by Ferrari's involvement in world class automobile races and later by its customers' participation in vintage automobile races and rallies.
Support: McCormack Transcript II-58, lines 4-15; Ward, Transcript VIII-71, lines 12 through p.73, line 15; Lay, Transcript VI-190, lines 17-18.
13b. There was also evidence that the Ferrari DAYTONA SPYDERS are currently being sold by their owners for prices of a million dollars and more. These sales have been heavily publicized.
14. Defendants admittedly intentionally copied Ferrari's DAYTONA SPYDER design in a very close manner. [*6] Thomas W. McBurnie, one of the defendants, testified that he, at one point, made splash molds from a genuine Ferrari DAYTONA SPYDER. He further testified that he could not identically copy it because he wished to use a Corvette chassis which required slight alterations in the car's dimensions.
However, there is not any dispute in the evidence, and the court finds, beyond a reasonable doubt, (even though only a preponderance of the evidence need be shown), that defendants intended to and did come as close as they possibly could to the lines and the image of the Ferrari DAYTONA SPYDER. (The car built by the defendants is hereinafter referred to as the "DAYTONA replica" or "replica Daytona").
Support: McBurnie Transcript III-153, lines 3-8; IV-42; lines 4-22; IV-153, line 1; IV-157, lines 7-8; Exh. 60 and 62; Transcript of Decision, p.3., line 15 through p.4, line 15.
15. The defendants originally built the replica Daytona for an individual named Albert Mardikian. Mr. Mardikian paid for four prototypes from defendants, two of which were ultimately leased and then sold to the Miami Vice television show.
16. The replica Daytona that appeared on the Miami Vice television show was called "The Ferrari" and bore Ferrari registered logos. The Miami Vice television show further publicized the association of the DAYTONA SPYDER design with Ferrari.
17. Mr. Mardikian and defendants had agreed to produce a large number of these replicas. When Mr. Mardikian ultimately ran into legal and business problems, defendants decided to manufacture the Ferrari DAYTONA replicas for themselves. Defendants admittedly used Ferrari logos when initially showing their Daytona replicas at specialty car shows, and used Ferrari logos on photographs of their replica Daytonas in their brochures. Defendants' parts lists also offered "Ferrari or "Ferrari style" instrument clusters and interiors as options for their Daytona replica, and continuously identified the car design with its "Ferrari heritage."
Support: Exhibits 65; 110A-110F; 99; 100; 60; 51. McBurnie Transcript III-96, line 10; III-97, lines 21-22; III-107, line 13 through p.108, line 22; III-122, lines 14-16; [*8] III-123, lines 18-19; III-125, line 16 through p.126, line 4; IV-46, lines 20-24; IV-48, lines 18-20; IV-129, lines 7-11; IV-157, lines 1-8; V-6, lines 4-8.
18. Defendants' replica cars are not toys; the kits sold for between six and ten thousand dollars, and the completed or turn key cars sold for between forty and sixty thousand dollars. Many of defendants' customers placed Ferrari logos on their replica Daytonas after purchase, and defendants admittedly told these customers where such logos could be purchased.
19. One of defendants' customers bought a brand new 1988 Corvette and requested defendants to remove the entire "skin" or body paneling and replace it with Daytona replica body paneling. This remodeling costs defendants' customer approximately twenty thousand dollars more than the original Corvette.
20. The purchasers of defendants' cars clearly bought them because the design was associated with Ferrari, and they wanted to [*9] drive a car that appeared to the relevant public to be a Ferrari.
Support: Transcript of Decision, p.11, lines 5-15; McCormack Transcript II-96, lines 2-8; McBurnie Transcript IV-168, lines 18-25; V-3, lines 11-12; V-38, line 20 through p.39, line 2.
21. Both parties submitted surveys at trial which were designed to test whether a relevant universe of consumers associated the DAYTONA SYPDER design with Ferrari. The plaintiff's survey, using a universe of subscribers to popular auto magazines, such as Road & Track, and Car and Driver, found that 73% of respondents, when viewing photographs of the DAYTONA SPYDER design with all indicia removed, identified it as a Ferrari. The defendants' survey taken in three different cities, using a universe of males over the age of 18, revealed an average of approximately 20% of respondents identified the DAYTONA SPYDER design as a Ferrari.
Support: Exhibits 35(1), 35(3), 35(4), A-I; T. Transcript of Decision, p.6, line 6 through p.7, line 3.
22a. Both surveys were flawed. Plaintiff's universe was, in the court's opinion, too narrow, because Subscribers to such magazines have perhaps too much interest in cars as compared to more [*10] casual readers of such magazines purchased from news vendors. Defendants' universe was probably too broad because it did not screen for people with any particular interest in cars or who might have any particular interest or means of purchasing high performance, uniquely designed, limited production sports cars.
Support: Transcript of Decision, p.8, line 14 through p.9, line 4.
22b. The credibility of defendants' survey was also placed into question because the raw data, (original questionnaires and answers) upon which the survey results were based, was destroyed during the course of the litigation before plaintiff could review it. Thus plaintiff could not check the accuracy of defendants' results. Further, the photograph of the Ferrari DAYTONA SPYDER was of poor quality and shadowy in certain areas, which could have affected the degree of recognition.
Support: Transcript of Decision, p.8, lines 1-13; p.6, lines 17-25; Exh. F.
23. In light of defendants' close intentional copying, their failure to introduce any evidence to show that such copying was for any purpose but to associate themselves with the reputation and marketability of the Ferrari DAYTONA SPYDER, the large [*11] amount of recognition of said design with Ferrari shown in continuous magazine articles and books about the DAYTONA SPYDER long after the cessation of its manufacture, the showings of the Ferrari DAYTONA SPYDER at vintage car shows, the highly publicized sales of said car by Ferrari customers, and the percentages of recognition in both the plaintiff's and the defendants' surveys, although flawed, the court finds the evidence thorough and convincing that the Ferrari DAYTONA SPYDER design has achieved a strong secondary meaning.
Support: Transcript of Decision, p.4, lines 11-18; p.5, line 25 through p.6, line 8; p.7, lines 4-16; McBurnie Transcript V-24, line 20 through p. 25, line 4.
E. LIKELIHOOD OF CONFUSION
24. HN1Go to the description of this Headnote.Likelihood of confusion is an issue of fact in this circuit. Levi Strauss & Co. v. Blue Bell, Inc., 779 F.2d 1352, 1356 (9th Cir. 1985); see also, Fuddruckers, inc. v. Doc's B.R. Others, Inc., 826 F.2d 837, 846 n.12 (9th Cir. 1987).
25. The plaintiff has asserted that it does not consider itself to be in competition with the McBurnie defendants. The testimony by defendants is that some of the purchasers of its automobiles may also purchase Ferrari automobiles. [*12] However, although the issue of direct competition is in dispute, HN2Go to the description of this Headnote.the court need not find that the parties are in direct competition in order to find likelihood of confusion. Maier Brewing Co. v. Fleischmann Distilling Corp., 390 F.2d 117, 123 (9th Cir.), cert. denied, 391 U.S. 966 (1968); Playboy Enterprises, Inc. v. Baccarat Clothing Co., Inc., 692 F.2d 1272, 1274 (9th Cir. 1982); c.f., Grey v. Campbell Soup Co., 650 F. Supp. 1166, 1173, 1174 (C.D. Cal. 1986).
26a. The plaintiff stipulated at trial that the purchaser of a McBurnie automobile would know that he was not purchasing a genuine Ferrari automobile when purchasing directly from the McBurnie defendants. However, he might not know if Ferrari has sponsored, approved, or licensed the defendants' activities.
Support: Matteoni Transcript V-63, liens 6-12; V-64, lines 1-4.
26b. In Grey, supra, 1173, the court stated:
HN3Go to the description of this Headnote.Likelihood of confusion is not limited only to confusion as to the source or origin of the goods. Rather, the appropriate inquiry is whether the average purchaser would be likely to believe that the infringer's product has "some connection" with the trademark owner.
26c. This circuit [*13] has long recognized that the universe of relevant consumers who might be confused includes those who would see the trademark or trade dress away from the point of purchase. For example, in Levi Strauss & Co. v. Blue Bell, Inc., 632 F.2d 817 (9th Cir. 1980), the Court of Appeals stated, at 822:
[Wrangler] limits its argument to "point of sale" circumstances. However, billboards and other point of sale materials are removed by the purchaser and have no confusion--obviating effect when the pants are worn. Wrangler's use of its [infringing tag] is likely to cause confusion among prospective purchasers. (Emphasis in original).
See also, Lois Sportswear, U.S.A., Inc. v. Levi Strauss & Co., 799 F.2d 867, 872073 (2d Cir. 1986); Rolex Watch U.S.A., Inc. v. Conner, 645 F. Supp. 484, 492 (S.D. Fla. 1986) (Lanham "Act endeavors not just to protect a purchaser, but . . . the marketplace at large."); Rolls-Royce Motors, Ltd. v. A & A Fiberglass, Inc., 428 F. Supp. 689, 694 (N.D. Ga. 1977) (Confusion exists where "the public" would identify defendants' marks as those of the plaintiff).
27. There was evidence presented that the McBurnie defendants put their name on the rocker [*14] panel on one side of their cars. However, this name cannot be seen even from reasonably short distances and would almost certainly not be seen when the McBurnie replica Daytona is seen driving down the freeway or parked any distance from the viewer. Moreover, there is evidence that at least some of the kit car customers removed the name from the rocker panel when building their cars.
Support: Exh. 45; Deposition of Winters, Transcript IX-81, line 23 through p.82, line 6. Deposition of Copple, Transcript IX-43, lines 14-17. McBurnie Transcript VIII-149, liens 6-9.
28. HN4Go to the description of this Headnote.In this circuit, a deliberate attempt at copying creates a rebutable presumption of deception or confusion. AMF, Inc. v. Sleekcraft Boat, Inc., 599 F.2d 341, 354 (9th Cir. 1979), Fuddruckers, Inc. v. Doc's B.R. Others, Inc., 826 F.2d 837, 845, 846 (9th Cir. 1987).
Support: Transcript of Decision, p.7, lines 17-19.
29. The McBurnie defendants carefully, closely, and intentionally copied the overall design of plaintiff's 365 GTB/4 DAYTONA SPYDER, and only an expert who had been pre-briefed and carefully instructed as to what to look for could tell the difference between plaintiff's and defendants' cars.
[*15]
Support: Transcript of Decision, p.10, lines 4-13; p.11, lines 12-15; McBurnie Transcript IV-153, line 1; IV-157, lines 7-8.
30. Since the Ferrari DAYTONA SPYDER design is unique and distinctive, it constitutes a strong trade dress.
31. The McBurnie defendants advertised in the Robb Report where Ferrari and other high performance limited production sports cars are advertised. Further the record shows that purchasers of defendants' Daytona replica kits advertised their cars for sale in such places as Hemmings and the Wall Street Journal. Purchasers have also displayed their cars at auto shows where Ferraris and other high performance limited production sports cars were shown.
Support: Deposition of Mock, Transcript IX-28, lines 2-14; Deposition of Winters, Transcript IX-62, line 24 through p.63, line 1; IX-67, lines 6-10; McBurnie Transcript III-136, lines 3-12; IV-147, lines 21 through IV-148, line 2.
32. Both parties also presented survey evidence on the issue of likelihood of confusion. The same universe was used by each party for the likelihood of confusion [*16] survey as was used in their respective secondary meaning surveys. Both confusion surveys were flawed for the same reasons as discussed above. Plaintiff's survey based on photographs of cars indicated a confusion rate of approximately 67%. Defendants' survey based on the showing of actual McBurnie Daytona replicas, even with the McBurnie name attached and Corvette style interiors, indicated confusion ranging from 11% to 23%, depending upon certain variable factors. The defendants failed to take photographs or videotapes of the cars shown to the survey respondents and again destroyed their raw data. Notwithstanding the flaws in both surveys, the court finds clear evidence that a likelihood of confusion is probable.
Support: Transcript of Decision, p.7, line 20 through p.8, line 13. Exhibits 35(5), 35(6); A-I; T.
33. The evidence is clear that the McBurnie defendants initially supplied Ferrari logos to their customers until receiving a protest from plaintiff's related company Ferrari of North America. Even after receiving this protest, the McBurnie defendants told their customers where they could purchase Ferrari logos and encouraged such customers to use these logos by showing [*17] photographs of McBurnie Daytona Replicas bearing Ferrari logos in their brochures. Even without Ferrari badges on these replicas, the McBurnie defendants knowingly made it possible for their customers to drive a car which the relevant consumer would believe was a Ferrari. In fact, this is the whole marketing strategy of defendants' business which also provided options for "Ferrari Style" instrument panels and interiors to complete the deception. There is no question from the evidence presented that defendants induced and encouraged their customers to parade their automobiles to the relevant public as genuine Ferrari automobiles.
34. The evidence in the record is also clear that Ferrari has gained a well-earned reputation for making uniquely designed automobiles of quality and rarity. The DAYTONA SPYDER design is well-known among the relevant public and exclusively and positively associated with Ferrari. If the country is populated with hundreds, if not thousands, of replicas of rare, distinct, [*18] and unique vintage cars, obviously they are no longer distinct, and they are no longer unique. Even if a person seeing one of these replicas driving down the road is not confused, Ferrari's exclusive association with this design has been diluted and eroded. If the replica Daytona looks cheap or in disrepair, Ferrari's reputation for rarity and quality could be damaged, even in the absence of confusion.
Support: Matteoni Transcript V-64, lines 5-10; V-64, line 15 through p.65, line 5. Transcript of Decision, p.12, lines 3-14; p. 13, lines 7-21.
G. ABANDONMENT
35. At trial, the plaintiff produced extensive evidence that since 1974 when it ceased the manufacture of its 365 GTB/4 DAYTONA SPYDER, it has continuously and extensively manufactured mechanical and body parts for the repair and servicing of its DAYTONA automobiles. The evidence indicated without dispute that Ferrari has manufactured and sold to an exclusive licensee an average of 5 or 6 entire front end body parts (everything but the hood, including bumpers), as well as 5 or 6 entire rear end body parts per year since 1974. The evidence clearly showed without dispute, that Ferrari has maintained, used, or replaced [*19] all of its original tooling for 365 GTB/4 DAYTONA, and has provided same to its exclusive authorized licensee to manufacture parts as they are needed by DAYTONA owners. There was unrebutted testimony that Ferrari would manufacture original replacement parts for all its cars, including the 365 GTB/4 DAYTONA, so long as these cars continue to be owned and driven.
From time to time, both Ferrari and its authorized licensee have virtually remade or refurbished entire 365 GTB/4 DAYTONA automobiles. In this manner, there has been continuous commercial use and sale of the DAYTONA design trade dress.
The evidence also shows that the Ferrari DAYTONA SPYDERS are still driven extensively. Unrebutted testimony was given by personnel from Ferrari of North America and Ferrari's exclusive parts licensee that they continuously service DAYTONA SPYDERS, including the recommended 3,000 mile check-ups.
Even independent of such activities by Ferrari, the DAYTONA SPYDER design is strongly associated with Ferrari, and such association is extremely positive. In essence, Ferrari has not only achieved a strong existing goodwill but continues to maintain a residual goodwill in the unique design of the DAYTONA [*20] SPYDER.
For these reasons, the court finds that Ferrari never intended to abandon its rights in or use of the DAYTONA SPYDER trade dress and has not abandoned its rights. Ferrari's continuous use of its trade dress has been made in good faith and for valid commercial reasons.
Support: Transcript of Decision, p.13, lines 21-23. Exhibits 31(5); 32; 44; 67(1)-(3); 69; 79(1)-(7); 80; 81; 82; 83; 84; 85(1)-(3); 86(1); 86(2); 87; 87a; 108(A-D); Lay Transcript VI-177, line 10 through p.193, line 20, VII-1, line 12 through p.16, line 10; Ward Transcript VIII-66, line 18 through p. 73, line 15; Levrini Transcript V-123, line 15 through p.129, line 8; VI-161, line 13 through p.170, line 8; VI-176, lines 18-20.
H. LACHES AND ESTOPPEL
36. There is evidence in the record which shows that an attorney for Ferrari of North America, plaintiff's related company, protested the use by the McBurnie defendants of Ferrari logos on their cars. This occurred approximately 9 months prior to the time that plaintiff claimed it found out about defendants and approximately one year before suit was filed. This attorney claimed to represent plaintiff, but plaintiff's witness had never heard of him before [*21] this suit was filed. Notwithstanding the above, the defendants testified that even if the attorney in question had requested that defendants cease making the DAYTONA replica in addition to the protest about the use of Ferrari logos, he would not have stopped. Further, defendants, even after this suit was filed, proceeded to replicate another Ferrari model with knowledge that Ferrari had already objected to such replication by the party from whom defendants obtained some of their parts.
The court, therefore, finds that plaintiff did not have knowledge of defendant's activities until Spring of 1986, did not unreasonably delay in filing this suit, did not consent to or acquiesce to defendants' actions, and did not waive any rights. The court also finds that defendants did not reasonably rely to their detriment upon any of plaintiff's actions.
37. The evidence is clear [*22] that defendants' replication and sale of plaintiff's 365 GTB/4 DAYTONA had taken plaintiff's reputation out of its own hands and has tarnished plaintiff's reputation for rarity, quality, and uniqueness. Defendants' actions have also eroded Ferrari's valuable goodwill derived from its association with the DAYTONA design.
The damage to Ferrari is irreparable in that it cannot be calculated. Further, the actions of defendants do not just threaten the reputation of the DAYTONA SPYDER, it threatens the reputation of all Ferrari cars.
Support: Transcript of Decision, p.13, line 24 through p.14, line 7; Matteoni Transcript V-64, lines 15 through p. 65, line 5.
38. Any conclusion of law which is actually a finding of fact, and vice versa, should be considered as such.
CONCLUSIONS OF LAW
JURISDICTION
1. Federal jurisdiction exists pursuant to 28 U.S.C. § 1338 in that this is an action for trademark infringement, false representation, and false designation of origin, arising under the Trademark Act of July 5, 1946, 15 U.S.C. § 1051, et seq, (60 Stat. 427), and particularly § 1125(a) thereof (hereinafter Section 43(a)), and which includes a closely related California state [*23] law claim for trademark dilution. Federal jurisdiction also exists by reason of the complete diversity of citizenship of the parties and the fact that the amount in controversy exceeds $ 10,000.00, exclusive of interest and costs, 28 U.S.C. § 1332.
TEST FOR TRADE DRESS INFRINGEMENT
2. HN5Go to the description of this Headnote.The test for trade dress infringement under Section 43(a) in this Circuit is "whether there is a likelihood of confusion resulting from the total effect of the defendant's package on the eye and mind of an ordinary purchaser." Fabrica Inc. v. El Dorado Corp., 697 F.2d 890, 894 (9th Cir. 1983). Fuddruckers, Inc. v. Doc's B.R. Others, Inc., 826 F.2d 837, 841 (9th Cir. 1987). As stated by the Ninth Circuit:
whether we call the violation infringement, unfair competition, or false designation of origin, the test is identical - is there a "likelihood of confusion?"
New West Corp. v. Nym Co. of California, Inc., 595 F.2d 1194, 1201 (9th Cir. 1979).
PROTECTABILITY
3. HN6Go to the description of this Headnote."Trade dress may be protected if it is non-functional and has acquired secondary meaning and if its imitation creates a likelihood of consumer confusion." Fuddruckers, supra, at 842.
Non-Functionality
4. The evidence [*24] is clear that plaintiff's trade dress is non-functional. HN7Go to the description of this Headnote.Trade dress must be examined as a whole to determine its functionality; thus, functional elements that may be individually unprotectable can be protected when used together as part of a trade dress. Fuddruckers, supra, at 826; LeSportsac, Inc. v. K Mart Corp., 754 F.2d 71, 76 (2nd Cir. 1985).
Secondary Meaning
5. Plaintiff has also established that its DAYTONA SPYDER trade dress achieved significant secondary meaning. HN8Go to the description of this Headnote.Secondary meaning is attained when the relevant public associates the trade dress with a particular source. Fuddruckers, supra, at 843; American Scientific Chemical, Inc. v. American Hospital Supply Corp., 690 F.2d 791, 793 (9th Cir. 1982).
6. Proof of secondary meaning herein has been shown through unsolicited and extensive coverage of the DAYTONA SPYDER design in periodicals and books, use of the car in vintage car rallies and races, and through the surveys introduced herein. Furthermore, "[t]he fact of deliberate and close imitation often is sufficient to establish secondary meaning." Grey v. Campbell Soup Co. 650 F. Supp. 1166, 1173 (C.D. Cal. 1986) citing Audio Fidelity, Inc. [*25] v. High Fidelity Recordings, Inc., 283 F.2d 551, 558 (9th Cir. 1960); St. Ives Laboratories v. Nature's Own Laboratories, 529 F. Supp. 347, 349-50 (C.D. Cal. 1981); Clairol, Inc. v. Cosway Co., Inc., 184 U.S.P.Q. 583, 586 (C.D. cal. 1974); see also, Fuddruckers, supra, 826 F.2d at 844 ("in appropriate circumstances, deliberate copying may suffice to support an inference of secondary meaning").
7. HN9Go to the description of this Headnote.Unique or distinctive designs or product shapes do not need a showing of secondary meaning to obtain protection from infringement. The very fact of their distinctiveness causes these unique or distinctive designs to distinguish one person's products form another's. See, In re International Playtex Corp., 153 U.S.P.Q. 377, 378 (TTAB 1967); c.f., Levi Strauss Co. v. Blue Bell, Inc., 632 F.2d 817, 820 (9th Cir. 1980). Since secondary meaning has been proved, the court need not rule on the issue of inherent distinctiveness, but the distinctiveness of plaintiff's design is evidence of its strength.
8. The court concludes that the overall design of the Ferrari DAYTONA SPYDER automobile constitutes protectable trade dress.
LIKELIHOOD OF CONFUSION
9. The court has considered [*26] all the factors for determining likelihood of confusion (see, AMF Inc. v. Sleekcraft Boats, 599 F.2d 341, 348 (9th Cir. 1979)), and concludes that the strength of plaintiff's trade dress, the close similarity of the parties' respective trade dresses, the overlap of marketing channels, and defendants' clear intent, coupled with the survey results, clearly indicate that likelihood of confusion is highly probable. 2
FOOTNOTES
2 Evidence of actual confusion is difficult to obtain, and failure to prove it is not weighed heavily except where such evidence should have been available. AMF, supra, 599 F.2d at 353. Degree of care to be exercised by actual purchasers is not relevant since those that may be confused for the most part are found away from the point of purchase. Rolex Watch, supra, 645 F. Supp. at 492.
CONTRIBUTORY INFRINGEMENT
10. The test for contributory infringement was set out by the United States Supreme Court in Warner & Co. v. Lily & Co., 265 U.S. 526 (1924), wherein the court held that HN10Go to the description of this Headnote.a manufacturer is liable for contributory infringement where it designedly enables or induces another to cause confusion or to pass off, i.e., to commit the unfair trade [*27] practice or tort. This Circuit, in Sealy, Inc. v. Easy Living, Inc., 743 F.2d 1378, 1381 (9th Cir. 1984), recognized that a manufacturer may be held liable for contributory trademark infringement "even if it does not itself mislabel goods or deceive consumers."
The evidence is clear that defendants have encouraged their customers to deceive the relevant public by selling them a vehicle which is virtually identical to plaintiff's celebrated auto design and which will be paraded as a Ferrari. The court, therefore, concludes that defendants are guilty of contributory infringement.
11. The addition of elements to the infringing product which do not affect the overall appearance will not avoid infringement. Fleischmann Distilling Corp. v. Maier Brewing Co., 314 F.2d 149, 161 (9th Cir. 1963).
DILUTION
12. The California Anti-Dilution Statute, Cal. Bus. & Prof. Code § 14330 HN11Go to the description of this Headnote.provides for injunctive relief against the use of a trade dress which is likely to reduce the distinctiveness of a a valid common law trade dress or otherwise injure the business reputation of the trade dress owner. This relief is available even in the absence of competition between the parties and in the absence [*28] of a likelihood of confusion. Levi Strauss, supra, 778 F.2d at 1362. The replication of plaintiff's famous DAYTONA SPYDER trade dress by the McBurnie defendants will erode the distinctiveness of such trade dress. "It is precisely this type of injury which § 14330 is intended to prevent." Grey, supra, 650 F. Supp. at 1175; Steinway & Sons v. Robert Demars & Friends, 210 U.S.P.Q. 954, 964 (C.D. Cal. 1981).
13. The defendants' Daytona replicas injure Ferrari's business reputation for quality, uniqueness, and rarity. See, Grey, supra. 650 F. Supp. at 1175.
DEFENSES
Abandonment
14. The 1946 Trademark Act states that:
HN12Go to the description of this Headnote.A mark shall be deemed to be 'abandoned' (a) when its use has been discontinued with intent not to resume. Intent not to resume may be inferred from circumstances. Non-use for two consecutive years shall be prima facie abandonment. . . .
15 U.S.C. § 1127.
HN13Go to the description of this Headnote.Because abandonment of a trademark is in the nature of a forfeiture, it must be strictly proved. Prudential Ins. Co. v. Gibraltar Financial Corp., 694 F.2d 1150, 1156 (9th Cir. 1982), United States Jaycees v. Philadelphia Jaycees, 639 F.2d 134, 139 (3d Cir. 1981).
The evidence in [*29] this case clearly shows that Ferrari, although ceasing the manufacture of new DAYTONA SPYDERS in 1974, continued, to the present, to manufacture and sell and to license the manufacture and sale of mechanical and body parts for the DAYTONA. Original molds and tooling have also been maintained. Thus, the Ferrari DAYTONA SPYDERS have continued to be driven, serviced, restored, sold, and exhibited by Ferrari customers. The DAYTONA SPYDER has, therefore, remained in the public eye, and the goodwill symbolized by this design is still strongly associated with Ferrari.
In Kingsmen v. K-Tel International Ltd., 557 F. Supp. 178, 183 (S.D.N.Y. 1983), the court held that a disbanded music group had not abandoned their name and stated, at 183:
Even though plaintiffs disbanded their group in 1967 and ceased recording new material, there is no evidence suggesting that they failed to use the name Kingsmen during the period from 1967 to the present to promote their previously recorded albums.
. . . These plaintiffs have no more abandoned this right to protect the name of Kingsmen than have the Beatles, the Supremes, or any other group that has disbanded and ceased performing and recording [*30] but continues to collect royalties from the sale of previously recorded material. (Emphasis added).
Likewise, in the case at hand, Ferrari has continued to maintain its goodwill symbolized by the DAYTONA design by extensive and continuous selling of parts, including front and rear body parts that substantially contain the entire design, and by the refurbishment and servicing of existing DAYTONA automobiles.
In American Motors Corp. v. Action-Age, Inc., 178 U.S.P.Q. 377 (TTAB 1973) a trademark opposition action, the Trademark Trial and Appeal Board held that the mark RAMBLER had not been abandoned even though the mark had not been used for a period of approximately three years. The Board stated at 378:
In fact, there is a considerable reservoir of goodwill in the mark "RAMBLER" in this country that inures to opposer as a consequence of the large number of "RAMBLER" vehicles on the road; [and] opposer's activities in supplying "RAMBLER" parts and accessories to owner's of these vehicles; . . . . (Emphasis added)
The evidence is clear, and the court concludes that Ferrari has not abandoned its DAYTONA SPYDER trade dress, does not intend to abandon its trade dress, and that [*31] the goodwill acquired by the DAYTONA SPYDER has remained strong and exclusively associated with Ferrari. Under such circumstances it would be damaging to Ferrari and a fraud upon the public to allow defendants to sell their confusingly similar replica Daytona automobiles and kits. The prohibition against the use of another's trademark where the goodwill is still strongly associated with the original owner was long ago recognized in the Restatement (First) of Torts § 752, Comment (a) even under circumstances where the trademark owner had intentionally abandoned its trademark.
15. "In actions for infringement of rights in trade names and trademarks, courts have a duty to protect both the private rights of the original owner and the right of the public to be free from confusion, deception, and mistake." American Petrofina, Inc. v. Petrofina of California, Inc., 189 U.S.P.Q. 67, 83 (C.D. Cal. 1975), aff'd, 596 F.2d 896 (9th Cir. 1979); Mishawaka Mfg. Co. v. Kresge Co., 316 U.S. 203, 205 (1942). The court concludes that the public also has a right to be protected from confusing or deceiving trade dress.
Laches
16. HN14Go to the description of this Headnote.The defense of laches is available when plaintiff has [*32] "slept" on its rights. In order to establish laches a defendant must prove that the plaintiff had knowledge of defendant's activities, that plaintiff's delay was inexcusable, and that the defendant reasonably relied upon plaintiff's delay and was materially prejudiced by it. Golden Door, Inc. v. Odisho, 437 F. Supp. 956, 967, 968 (N.D. Cal. 1977), aff'd 646 F.2d 347 (9th Cir. 1980); Dolby v. Robertson, 654 F. Supp. 815, 821-822 (N.D. Cal. 1986).
Based on the facts set forth, supra, defendants failed to meet their burden of proof for any and all of the factors necessary to proves laches. See, Stork Restaurant v. Sahati, 166 F.2d 348, 362, 363 (9th Cir. 1948).
Estoppel
17. HN15Go to the description of this Headnote.The defense of estoppel has virtually the same elements as laches except that the defendant must additionally prove that plaintiff, by words or silence, implied its consent to defendants' replication activity, and defendants need not prove inexcusable delay.
Based on the facts set forth, supra, the court concludes that defendants did not meet their burden of proof and that plaintiff never consented in any manner to defendants' replication. See, Dolby v. Robertson, supra, at 821-822. [*33]
IRREPARABLE INJURY
18. Numerous courts have recognized that the damage to goodwill associated with a trademark or trade dress is not capable of precise calculation. "Where there is, then, such high probability of confusion, injury irreparable in the sense that it may not be fully compensable in damages almost inevitably follows." Omega Importing Corp. v. Petri-Kine Camera Co., 451 F.2d 1190, 1195 (2d Cir. 1971). See also, Model Rectifier Corp. v. Takachiko International, Inc., 221 U.S.P.Q. 502, 503 (9th Cir. 1983):
HN16Go to the description of this Headnote.Damages caused by trademark infringement are by their nature irreparable and not susceptible of measurement for a remedy at law.
See also, Apple Computer, Inc. v. Formula Intern, Inc., 725 F.2d 521, 526 (9th Cir. 1984) and Citibank, N.A. v. City Bank of San Francisco, et al., 206 U.S.P.Q. 997, 1007 (N.D.Cal. 1980).
BALANCE OF EQUITIES
19. The balance of equities weighs heavily in plaintiff's favor.
VIOLATIONS OF SECTION 43(a)
20. Defendants' manufacture and sale of Daytona replicas constitutes a false designation of origin and misleading representation in violation of § 43(a) of the Lanham Act, 15 U.S.C. § 1125(a).
21. A permanent injunction [*34] is an appropriate remedy for a violation of § 43(a) of the 1946 Trademark Act; for violation of California Business and Professional Code § 14330; and for contributory infringement in violation of § 43(a).
INJUNCTIVE RELIEF
22. Plaintiff is entitled to a permanent injunction enjoining defendants from continuing to manufacture, sell, and falsely designate the origin of their replica Daytona, from selling Daytona replicas which will enable customers to mislead and confuse the public, and from diluting the value of plaintiff's DAYTONA SPYDER trade dress.
On April 24, 1989, this court signed and filed a judgment of permanent injuncton.
FERRARI S.p.A. ESERCIZIO FABBRICHE AUTOMOBILI E CORSE, Plaintiff, v. McBURNIE COACHCRAFT, INC., and THOMAS McBURNIE, Defendants. AND RELATED CROSS-ACTIONS
Civil No. 86-1812-B(IEG)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA
1988 U.S. Dist. LEXIS 16314; 10 U.S.P.Q.2D (BNA) 1278
August 31, 1988, Decided and Filed; September 6, 1988, Entered
ORDER GRANTING IN PART AND DENYING PART DEFENDANTS' AND COUNTERCLAIM DEFENDANTS' MOTIONS TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT
RUDI M. BREWSTER, UNITED STATES DISTRICT JUDGE
Just the case cite(s) would have been sufficient counselor....
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03:41 PM
sabooo Member
Posts: 859 From: Lehigh Valley, PA Registered: Aug 2006
I didn't read it all, but I didn't see any mention of mr stephen antoniettis name anywhere. McBurnie is the only name I've known connected to the miami vice daytonas. I see he was partnered up for a while though. People like to brag. There was a guy here who has a very impressive wheel standing ferrari replica who wasn't satisfied and posted phony time slips to enhance his reputation. Didn't work. He got busted and his reputation suffered. I don't think he's posted since.
[This message has been edited by dratts (edited 08-18-2010).]
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05:50 PM
Tony Kania Member
Posts: 20794 From: The Inland Northwest Registered: Dec 2008
Thanks for the info. I started to read it, then after scrolling down several pages, I got tired. Plus to you for the info though. really cool story, even if the guy I spoke with fudged a bit. I tried searching Mr. Antonietti, and continue to come up short. Like the OP states, he states that he had to watch his creations being destroyed with GM, Ferrari, and a slew of lawyers standing by.
This is the card that he handed me. I only knew of the story of the destruction of the molds, and took his story with a grain of salt. Perhaps he was an employee, partner, or whatever. He had never mention Mc Burnie.
Thanks again for the trouble of locating the info. Too bad I was only spitting a fish story. Would have been really cool.
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06:19 PM
Rick 88 Member
Posts: 3914 From: El Paso, TX. Registered: Aug 2001
Just wondering if anyone has any information about this. I met a guy yesterday named Stephen Antonietti. He tells me that his company was the one involved in the lawsuit brought up by Ferrari that has to do with the rebodies of our little cars. He says that he had to watch as his molds were destroyed! He also claims to have built the Miami Vice Daytonas off of the Corvette. I believe he said that they built 8 or nine of them.
I am trying to find more info. He was extremely knowledgeable about the Fiero, and even claims to be the first to put a V8 into our little beasts. I am going to keep looking into this. He seemed straight up. We shall see.
I know that I am not providing a lot of info here, but I am looking myself.
You might want to ask him if he is talking about the Mera molds from Corporate Concepts who manufactured the Mera and sold them new thru Pontiac dealers in 87 and 88. I am trying to gather information about the Meras and their demise. Corporate Concepts was also sued by Ferrari.
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09:07 PM
Tony Kania Member
Posts: 20794 From: The Inland Northwest Registered: Dec 2008
He never mentioned the Mera. Talking with the local O'Rileys guys this morning, they say that he talked about it for a while after I met him the other night. From what has been posted, his story matches the one posted about the lawsuit. Just that there are several details that he left out. Like the real name on the lawsuit. He may have been involved, but who knows.
Thanks for the info. I started to read it, then after scrolling down several pages, I got tired. Plus to you for the info though. really cool story, even if the guy I spoke with fudged a bit. I tried searching Mr. Antonietti, and continue to come up short. Like the OP states, he states that he had to watch his creations being destroyed with GM, Ferrari, and a slew of lawyers standing by. 
Would have been really cool. .jpg)
