M-B & Copyrights

[Bruce Adams]

Mercedes-Benz steps up pressure on replicas 
Gullwing design copyright status affirmed in Germany. ““However, as well as the creators of this vehicle copying our parts and designs, the use of the Mercedes-Benz name and logo is in clear contravention of our trademark rights and we will look seriously at this.” – M-B

Ever mindful of the impact of poorly conceived replica Gullwings on its heritage brand, Mercedes-Benz recently seized and destroyed a German built Gullwing replica’s fiberglass body. For decades the Silver Star has viewed any road going copy of the iconic Gullwing shape with derision, particularly those with badging as per the original. During the ’80s Tony Ostermeier’s generally respected Gullwing Cars operation in California skirted the badging issue by delivering their replicas with altered grille/deck lid star designs and no ‘Mercedes-Benz’ or ’300SL’ insignias. Predictably, as soon as new owners took delivery of their cars, an original grille star and original insignias were installed. Other replicas employed similar trickery to avoid attention from Stuttgart.

This will no longer be tolerated by Mercedes-Benz. Badging or no, the glorious Gullwing shape is a work of ‘applied art’ and has been under copyright protection for decades. It’s the enforcement that has been spotty. That is, until 2012. Emboldened by a December 2010 Stuttgart regional court’s ruling affirming the Gullwing design’s copyright status, Mercedes stepped up investigating copyright violations. It is not legal to copy the Gullwing design – at least not in Germany. Gullwing AG, a German firm which planned to introduce a new Gullwing using the original Ostermeier plans and fitted with modern drivetrain, was shut down shortly after the court ruling.

Daimler Media’s release outlines Mercedes-Benz’ attitude succinctly, “A case had arisen in which a company based in Germany had built an unlawful replica of a Mercedes-Benz 300 SL.” The replica was seized by German Customs officials which may indicate the car was being processed for export. While the entire experience had to be a nightmare for the owner, he/she likely did receive the rolling chassis back after its illicit body was unceremoniously removed and crushed. The issue involved the coachwork only. Case closed for this particular replica.

[Bruce Adams]

Wheatcroft W125 Recreations 
Mercedes-Benz Classic speaks out.

Stuttgart’s attitude toward protecting its cherished Gullwing shape is now clear but how will the Factory react to the specter of not one but five EXACT duplicates (4 open wheel versions and one streamliner) of the epic 595hp 1937 W125 Grand Prix car? Two have been completed and one was featured in a massive article within the February 2012 issue of the superb Octane Magazine. The brainchild of the now deceased historic Grand Prix disciple, Tom Wheatcroft, this project began in 2003 and has VERY quietly yielded two cars. Wheatcroft’s plan was to amortize costs by building five, selling 4 and placing the remaining car in his extraordinary Donington Park Racing Car Museum located within England’s Donington Park racing circuit.
With Wheatcoft senior’s death, son Kevin stepped in enthusiastically and kept the project moving ahead, utilizing the best fabrication shops in the world that conveniently happen to be located in England. This program is producing not just ‘replicas’ but, according to reports, DUPLICATES of the original car. How is this possible? The team’s mysterious acquisition of 2,500(!) original drawings and access to two of the original cars that escaped the factory into private hands has insured a mind bending level of accuracy. We must credit the extraordinary fabrication and research skills of Crosthwiate & Gardener and master coachwork fabricator Roach Manufacturing as well.

Mercedes-Benz Museum CEO comments.

How does Mercedes-Benz feel about this project which comes to fruition the same year it decides to actually race it’s W125 in selected top tier historic events? Michael Bock, CEO of Mercedes-Benz Museum GmbH and Head of Mercedes-Benz Classic, responded with a tactful but revealing statement also in Octane’s Februry issue, “The Mercedes-Benz w 125 is an iconic racing car, and whilst we can see the logic in companies recreating those cars lost forever, like the Auto Unions and Von Trips’ ‘Sharknose’ Ferrari, there’s no justification to create a facsimile of the real deal, especially when these cars are still regularly shown.” Bock continued by citing trademark issues, “However, as well as the creators of this vehicle copying our parts and designs, the use of the Mercedes-Benz name and logo is in clear contravention of our trademark rights and we will look seriously at this.”
Mr. Bock closes with, “We support – at any time – all collectors of original Mercedes-Benz cars with all the passion, experience and knowledge we have but we have no understanding (tolerance? ed.) for facsimiles of the real deal.” Strong if slightly veiled words. We have a feeling none of Wheatcroft’s W125s will see German soil anytime soon. This fascinating saga centering around the passion for and protection of two of Mercedes-Benz’ most enduring and cherished sporting creations is certainly going to evolve. I feel there will be more confrontations ahead.

[JimVillers]

Bruce ... A very interesting discussion. My view is that there is a qualitative difference between producing multiple clones as a business and the true reproductions that exactly reproduce the original (at great cost). True reproductions, like the prototype that you built for Larry, are not a commercial endeavor but a desire to create something that may or may not be in existence. It is a touchy topic and I hope that MB would focus on commercial enterprises verses artistic creations.

[Jim Rombough]

Bruce & Jim
I read these storys in the Hagerty magazine with great interest .The questions I came up with are
# 1 there normally is a statute of limitations on a copy right ,pills is normally around 10 years
then they can be closely copied .
# 2 This was settled in a German court likely wouldn`t get the same results out side Germany other than a fine for using the Mercedes name .
China`s crushers would be busy if it became world law.
Personally I don`t know whether I agree with it or not .

[MBMEX]

I think that MB has realized the risk for their historic and iconic designs to be cloned or reproduced in China, as it´s happening right now with current brands and models, search on YouTube for fake cars and you will see what I am trying to say.

Another thing that comes to my mind is the fact that last year MB cut the supply of parts to some well known sellers in the market as Niemoeller and others. May this be related in some way?

[JimVillers]

Jim .... Copyrights do not expire like patents. Music written 50 years ago is still copyrighted and performance rights sold. Likewise for printed materials and art. I would assume that MB successfully argued that the automotive shape was the same as a sculpture.

[ColKlink]

Jim .... Copyrights do not expire like patents. Music written 50 years ago is still copyrighted and performance rights sold. Likewise for printed materials and art. I would assume that MB successfully argued that the automotive shape was the same as a sculpture.

Indeed ... and 'thanks' Disney.

[Bruce Adams]

Jim – you have succinctly pointed out the fundamental issue – commercial gain. Larry completed his Prototype project because of his passion for the marque. I feel his efforts added value to the M-B heritage, especially since the original was no longer in existence. He will never see “commercial gain”. That I am sure.

BTW... the "new" website "look & feel" is very nice - thank you for all you do for the Club.

[Bill Ainsworth]

Jim V. you hit it on the head.
It's not uncommon to see Porsche 550 Spyders, AC Cobras or Ford GT 40's along with many other replicas running around here in So Cal. as the original versions of these cars are basically unattainable for most of us. These are available because arrangements/agreements and lots of discussion with legal teams have taken place with the respective parent companies. Like art, design, photography, music or any other type of original content, it should not be reproduced or "re-purposed" without consent of the original owner. We see copyright disclaimers on everything we touch these days. I have to side with MB on this one. If they decide to change their position on this down the road, so be it–they are the owners.
It seems in the digital age, just because technology now allows us to copy or plagiarize original work easily, doesn't make it right. Some see it otherwise and have no problem making a few bucks on someone else's work. In the advertising/design biz we see the misuse of others content all of the time. It usually gets down to whoever has the most $/resources wins. Wouldn't want to go up against MB on this one.
This is an ever changing and complicated subject.

Original Article at MercedesHeritage.com (http://www.mercedesheritage.com/2012/mercedes-benz-crushes-unlawlful-gullwing-replica/) with pics

[ColKlink]

Generally speaking, I agree with MB as well.

Where there could be an issue is with parts that are NLA from MB, lets say a grill 'star'. If MB doesn't have them and is not re-casting them, then where would they come from? As an individual, one could have them made (at some cost - one can't just make a mold from an existing one, the mold has to be slightly over-sized from I understand although tolerances may not have to be that exact) without MB coming after you. What about the seat adjustor flaps? Same issue. It's a dog's breakfast.

Bill, I've seen my photography work end up on CD covers and CD inserts, even TV ad's - with credit but without permission (that's takes SOME nerve), let alone all over the internet. It is upsetting.

[ranchomerced]

Generally speaking, I agree with MB as well.

Where there could be an issue is with parts that are NLA from MB, lets say a grill 'star'. If MB doesn't have them and is not re-casting them, then where would they come from? As an individual, one could have them made (at some cost - one can't just make a mold from an existing one, the mold has to be slightly over-sized from I understand although tolerances may not have to be that exact) without MB coming after you. What about the seat adjustor flaps? Same issue. It's a dog's breakfast.

Bill, I've seen my photography work end up on CD covers and CD inserts, even TV ad's - with credit but without permission (that's takes SOME nerve), let alone all over the internet. It is upsetting.

Having been in the business of restoring Gullwings for the last 25 years I have spent alot of money and time creating jigs and sheet metal body bucks for the iconic 300SL body because the sheet metal and frame parts were no longer available. Now with the Classic Center in Both Germany and California directly competing for restoration work with the small private company restorers the factory decides to jump back into the business probably because the values of these cars now can justify their involvement. I supopose it is their right and I am Mercedes biggest fan and do not wish to steal any kind of copyright from them but I am being damaged financially now if I can no longer legally produce aftermarket sheet metal or any parts I have spent alot of money and time for tooling etc.

[ranchomerced]

How long until K and K Mfg. wont be able to sell you sheet metal for the 190SL or 280SL because it will be a trademark infringment to manufacture replacement sheet metal?

[ColKlink]

How long until K and K Mfg. wont be able to sell you sheet metal for the 190SL or 280SL because it will be a trademark infringment to manufacture replacement sheet metal?

I believe when it comes to parts without insignia (Star, '190 sl' logo etc.), there are provisions for after-market manufacturing, for example I bought an after-market tail-light for my Toyota at half the price; looks identical to the original except fo course for the tiny 'text' in the lens,

[ranchomerced]

I believe when it comes to parts without insignia (Star, '190 sl' logo etc.), there are provisions for after-market manufacturing, for example I bought an after-market tail-light for my Toyota at half the price; looks identical to the original except fo course for the tiny 'text' in the lens,

Not really... They crushed this car even without the badging. "Ever mindful of the impact of poorly conceived replica Gullwings on its heritage brand, Mercedes-Benz recently seized and destroyed a German built Gullwing replica’s fiberglass body. For decades the Silver Star has viewed any road going copy of the iconic Gullwing shape with derision, particularly those with badging as per the original. During the ’80s Tony Ostermeier’s generally respected Gullwing Cars operation in California skirted the badging issue by delivering their replicas with altered grille/deck lid star designs and no ‘Mercedes-Benz’ or ’300SL’ insignias. Predictably, as soon as new owners took delivery of their cars, an original grille star and original insignias were installed. Other replicas employed similar trickery to avoid attention from Stuttgart".

[Bill Ainsworth]

How long until K and K Mfg. wont be able to sell you sheet metal for the 190SL or 280SL because it will be a trademark infringment to manufacture replacement sheet metal?

Though they offer a wide range of MB replacement sheet metal, I don't think K&K sells completed 300 SL's, badged or otherwise, which I think is the issue here.
At Cars & Coffee in Irvine, CA we have a gentleman that has shown up on several occasions attempting to sell his "Vintage 300 SL Gullwing race car" A beat up reproduction that anybody with an ounce of knowledge could spot a mile away. But for the uneducated this may look like a real find. Buyer beware.
It seems to be a different story here domestically, watch 10 minutes of a Barrett-Jacskson auction and you'll see "reproductions", "tributes" or "clones" of just about any muscle car you can think of. All acceptable going for pretty high dollar amounts. These days you can even purchase a steel bodied "1969 Crate Camaro" (http://www.hotrod.com/techarticles/body/hrdp_0410_first_gen_camaro_bodies/viewall.html) I know we're talking apples and oranges here in terms of value, but I'd have to think a brand new steel bodied 1969 Crate Camaro, assembled to a higher level than the original might confuse if not erode the market at some point.
The MB Classic Center has mentioned because of the high values and counterfeit potential for cars like the 540K Special, it's not uncommon to run metallurgy tests to check the authenticity of these classics. Crazy.

[Henry Magno]

There have been a number of 540 K Special Roadster replica bodies made both in the US, and in Germany, built on original 540 K chassis. These cars still have substantial value as replicas, given the huge value of the originals. While I certainly don't condone passing off replicas as originals, is MB now allowed to seize and destroy these cars because of copyrights on the design. As far as replacement parts go, what is the law here? If there is no patent on a part, is copying it illegal if it bears no manufacturers markings and is not represented as a factory part?

As for copyrights on complete vehicle body styling, I would think that according to US law, only commercial enterprises could be subject to a lawsuit, since if an individual built something for his own use, actual monetary damages would have to be proved.

[ranchomerced]

This is just one of many questions one must ask. Especially with the very complicated copyright laws and the conflict of laws form the EU and US. According to the EU court Mercedes only has a design copyright on the shape; however it did not specify if they owned part of the shape such as just a fender or a door shape. Put together this means I can no longer provide replacement sheetmetal. However the other can of worms opened here and the court does not address the issue; can I buy their sheet metal and build a body? Is it still a replica even if it is their sheet metal that I used? Also at what percentage of an automobile may be reconstructed before it becomes a replica? 20% 50%? Ship of Thesius paradox comes to mind. Mercedes has opened itself up to all sorts of issues with regard to aftermarket parts that are not just trademarked but artistic in nature. According to U S copyright laws shapes cannot be design and utilitarian at the same time. The body design of the Gullwing began as a utilitarian exersize for aerodynamics only and is not primarily artistic.

[slover]

Where does the 190 SLR fit into this discussion?

This topic has been discussed over at the 356 forum for a while now. A lot of the members there feel Porsche has not protected their brand enough allowing the Beck and Intermeccanica clones of the 356.

[mb230s]

Where does the 190 SLR fit into this discussion?

This topic has been discussed over at the 356 forum for a while now. A lot of the members there feel Porsche has not protected their brand enough allowing the Beck and Intermeccanica clones of the 356.

I would guess that starting with a 190SL to build a 190SLR is completely different and OK. Basically just customizing an existing car. Was the 190SLR ever an official MB model anyway? Same with the prototype recreation.

The Factory 5 won the lawsuit against Shelby over the Cobra and Daytona shape -

http://concoursblog.com/shelby-attempts-to-trademark-cobra-shape-loses-big-win-for-factory-five-racing/


Once again - laws vary by country. Germany may be much more strict with regards to protecting the 300SL "shape" trademark. I'm not sure if MB would win in the USA.

OT - One day I would like a Beck (http://www.beckspeedster.com/home.html) 356 (buddy used to have the Beck Spyder). Tubular frame instead of a VW bug floorpan and everything brand new. No worry about driving it either. Keep meaning to make a day trip to the factory in Indiana.

[Bill Ainsworth]

I would guess that starting with a 190SL to build a 190SLR is completely different and OK. Basically just customizing an existing car. Was the 190SLR ever an official MB model anyway? Same with the prototype recreation.
Once again - laws vary by country. Germany may be much more strict with regards to protecting the 300SL "shape" trademark. I'm not sure if MB would win in the USA.

Dave I'd agree.
The SLR's that I'm familiar with all started life as actual VIN recognized 190 SL's, they've just been modified like "tributes", "clones", "recreations", whatever. If they were being built from scratch it may be a different story. There is a unique style or design element to the 190 SLR's, but nothing like the iconic look of the Gullwing. Can't imagine MB chasing those.

FYI
Dynacorn Classic Bodies (http://www.dynacornclassicbodies.com) notes that they do have a licensing agreement with GM. They do produce a number of classic/muscle car metal vintage bodies (Chevy and Ford)

[Mike Kunz]

Having been in the business of restoring Gullwings for the last 25 years I have spent alot of money and time creating jigs and sheet metal body bucks for the iconic 300SL body because the sheet metal and frame parts were no longer available. Now with the Classic Center in Both Germany and California directly competing for restoration work with the small private company restorers the factory decides to jump back into the business probably because the values of these cars now can justify their involvement. I supopose it is their right and I am Mercedes biggest fan and do not wish to steal any kind of copyright from them but I am being damaged financially now if I can no longer legally produce aftermarket sheet metal or any parts I have spent alot of money and time for tooling etc.

Sorry, but to suggest that the current actions are based on a financial motivation to compete with a small restorer is just plain absurd. Small restorers are valued customers in the parts side of our business. In terms of restoration work, the Classic Center has no shortage of business now and future and with that, no need to compete with anyone, especially so when the "competition" comes to us for their parts needs. Given the current classic car marketplace, I am sure the same can be said of most reputable restoration enterprises.

Ultimately, the issue is brand protection for the present and the future.