In the “second lap in this high-octane litigation” Shelby asserts that Factory Five Racing and a number of other entities infringe Shelby’s trademarks and trade dress designs in the Daytona Coupe Cobra. Based on a prior settlement agreement Judge Saris dismissed the claims against Factory Five but allowed claims against another defendant to remain. The res judicata analysis of the various dismissed claims (some with prejudice, some without) is somewhat involved.
As to the infringement and dilution claims against the remaining defendant, which surrounded use of plaintiff’s marks in domain names and metatags, the court held that the defenses raised (non-competition and fair use) were too factually intensive to dispose of in a Rule 12 motion.
http://pacer.mad.uscourts.gov/dc/cgi-bin/recentops.pl?filename=saris/pdf/shelby%20memo%20and%20order.pdf
Shelby v. Factory Five Racing, Inc., 09-10281-PBS (Feb. 16, 2010)
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