DeLorean Motor Company (DMC) intellectual property - Who owns it?
Let's unravel the story behind the
DeLorean Motor Company trademarks
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| Officially unlicensed DMC water bottle Moorea beach |
A little bit about me for perspective
I have always had a loud, unfiltered reaction to anything I see that I feel is unjust. It got me in to a lot of trouble when I was in school, but adults would sometimes tell me it would help me when I was older. In retrospect, they had good intentions, but they were wrong. Life would have much less drama if I could just ignore or not even recognize injustice, especially when it really has no direct impact on me. But, for better or worse (mostly worse), this is who I am. As I tell this story, keep in mind that I can differentiate behavior from the person, simply because someone has done something "bad" does not paint them as all bad.
I have come to realize that as a child my teachers, parents, and the media lied to me. Life is not like it is in the movies, where doing the honorable thing will result in success. My observation of reality demonstrates quite the opposite. Those who are judged and considered "successful" in our society are typically the ones who made some morally questionable decisions to get there. Had I realized this many years ago, it may not have changed my behavior, but it would have changed my expectations. Someone recently summed it up pretty well; "Only truly evil and compromised people win in this world because they are willing to do what will cost you your soul".
How does it work when something public is claimed to be private?
The town I live in owns a small community park up the street from my house. I noticed they have not mowed the grass in a while. Maybe if I build a fence around it and mow the grass, I will be entitled to claim it as mine and charge admission to use it??
It is always best to start at the beginning.
For 20 years, I have been publicly speaking out about this one specific issue, the DeLorean trademarks. This has become more of a hot topic as of late because of the announcement by "DeLorean Reimagined LLC" (DMR) revealing a new Alpha5 electric vehicle with the DeLorean name.
For those new to the discussion, there is a lot of history behind this that I have tried to follow over the years. I am going to share what I have learned from public sources but want to make it clear I AM NOT A LAWYER. While I do have opinions on all of this, they are not to be considered authoritative in any way. I am just a guy who feels compelled to call out perceived injustice when I see it. I encourage others to try and research all of this on their own (Start by following my links! Lots more detail there, if you have time). If you find something I have wrong, please let me know so I can correct it. I'm always open to new information too!
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| Screen shot of USPTO record. |
Ok! Let's get to the trademark stuff already!
The original DeLorean Motor Company Inc (DMC) business registration in the state of Texas is dated November 16, 1978. Like all good corporations looking to pay as little tax as possible, they were based in Delaware, despite the address listed of 100 W Long Lake Rd, Bloomfield Hills Michigan. The trademark designed by Phil Gibbon was also registered in 1978. This is a claim on the now iconic stylized letter 'DMC' artwork that appears on so many official documents, advertisements, as well as the front grille of the DMC-12 car. The registration listed the same Bloomfield Hills address. The USPTO database currently lists this mark as "Dead", cancelled on August 23, 1985. According to my research, this is the only trademark that was filed with the USPTO, however I have been advised that this is more of a tool if there is a dispute at a later date. Proof of use in commerce can also be used as a claim.
After the bankruptcy
In November 1982, Sol Schenk of Consolidated bid against Charles DeLorean (John's brother) for the remaining assets of DMC. The judge decided that Consolidated won the bid. It is unclear from the documents I have seen if the intellectual property was included in the sale, but more on this later. Consolidated later hired KAPAC to continue to distribute parts to existing DeLorean repair shops and owners at a deep discount. More information on Consolidated/KAPAC from Hemmings, When DeLorean moved to Columbus.
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| 1995 business registration |
From a public point of view, all of the trademarks, artwork, and even the name "DeLorean Motor Company" were in the public domain from 1982 until 2002. Owners, enthusiasts, vendors, and anyone looking to make a buck were using it without consequence.
This is where it got interesting!
In May of 1995, Stephen Wynne, a former employee of "DeLorean One" based in Chatsworth, CA, registered the name "DeLorean Motor Company" in the state of Texas. I am not sure how the state allowed it, but it happened. The "official story" can be found on the about us page and is mostly accurate (as of when I wrote this blog) but is missing a few details. Within the community, they referred to themselves as "DeLorean Motor Company (Texas)", but most people just called them "DMCH" for "DeLorean Motor Company Houston". On the various mailing lists, mostly, the "DeLorean Mailing List" (DML) run by James Espey, and discussion forums it helped to differentiate the two companies even though I felt that the confusion was deliberate.
A few years later, DMCH announced that they were purchasing all of the remaining parts in the KAPAC warehouse and shipping them to Houston. The final public tour of the KAPAC warehouse came in June of 1998, the day after the DeLorean Car Show in Cincinnati, Ohio. Some were excited at the prospect of having all of the parts inventoried as the operations of KAPAC were disorganized. They (KAPAC) really had no idea what they had in stock, and at one point destroyed many valuable parts to shrink their warehouse space. On the other hand, DMCH now had a monopoly on all of the New Old Stock (NOS) parts. It was also about this time that James Espey joined DMCH. James handed over control of the DML to others in the community to avoid any conflict of interest.
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| DMCH registration 1999 |
And then everything changed.
Sometime in early 2002, members of the community started to receive cease and desist (C&D) letters from DMCH, saying that they (DMCH) owned the trademark artwork that the community had been using for 20 years. It was recognized as public domain because DMC was long gone.
This spawned a flurry of activity on the DML, with members like me doing a bit of arm-chair research on the topic. I also happened to have access to an IP attorney as part of my full-time employment. The trademark that DMCH registered on October 3, 1999, was similar to the original (the one registered in 1978) but not the same.
It was odd that even though the artwork was clearly different it could be used to stop others from using the similar design. Unfortunately, none of the entities that received the C&D letters were in a position to fight the claim. All of them chose to concede, except for one: the only original DeLorean dealer that was still in operation, providing parts and services, PJ Grady. I found it interesting that because Grady owned a dealership, he was allowed to use all of the artwork for business purposes. Use of the trademark was part of the price of becoming a dealership. I suspect DMCH avoided confrontation with Grady because it is one they would likely lose.
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| Stock certificate from 1981 using the same trademark that was registered in 2001. |
Similar is not the same!
It is important to note that the "outline" DMC logo that DMCH registered was used on many documents dating back to 1976 from the DeLorean Motor Company. I was advised by my lawyer friend that "if challenged by a Bonafide business that has pre-existing use of the trademark, the new claim will fail." But to do that, someone had to fight. To date, no one (to my knowledge) has.
The legacy of a man and his name
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| Registration of "DeLorean" in 2000 |
For years, this was the status quo.
When people in the community would try to use any DeLorean related artwork, they would be shut down either by claims made to the hosting company of the item (Ebay, Zazzle, etc.) or directly with a threatening C&D letter. All the while, DMCH continued to register other trademarks, all of which had already been used in commerce prior to 1995 (the year DMCH was founded).
Every few years there would be some media blitz about a "new DeLorean" where interviews with Stephen and James would include quotes that they "acquired" the trademarks. Many lazy reporters would translate that in to "they bought the trademarks", sometimes assuming they were included in the KAPAC sale. James confirms this statement in a community forum post where he says "And actually, we did get rights to certain IP from Kapac, which they acquired from Consolidated when they got it from the DMCL Receiver. The stylized DMC logo, of course, was not part of that and was acquired through an application approved by the USPTO. Over the years we have added to the IP portfolio to protect the brand from uses that could have been inconsistent with the direction in which Stephen (as owner) wanted the business to go." It is not clear what IP came from KAPAC, but it is clear it did not include the logos that were used in commerce from 1976-1982 by DMC and then by many others from 1982-2002.
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| Example of the "confusion" |
A new car with an old, unrelated name
This recent article discussing the new "Alpha5" EV being marketed by the company led by CEO Joost de Vries now publicly calling itself DeLorean Motor Company (in Austin) but looks to be a different entity than the Stephen Wynne owned DeLorean Motor Company (in Houston). DMCH appears to be undergoing a rebrand to "Classic DeLorean".
But, back to our timeline. John DeLorean passed away in 2005. It was shortly after that we started to see/hear reports from Stephen Wynne that John "approved" of the new company that formed 10 years prior. It is a claim I find hard to believe.
Fast forward to 2014, Sally Baldwin files a lawsuit against DeLorean Motor Company (Texas) for using the trademarks and trade dress owned by the John DeLorean estate. At the time, it was clear that DMCH was collecting licensing fees from companies like Mattel, Target, Microsoft, and any other place the car or DMC images were being used. That case was settled by a private agreement between the parties in 2015.
Then, in 2018 Sally again took action against DMCH when she learned that prior to 2005 John was receiving payments from Universal Studios of 5% for use of the DeLorean IP in Back to the Future merchandise sales. John made this agreement with Universal Studios in 1989. Documents and articles related to this indicate that John personally owned all of the IP from DeLorean Motor Company as part of the bankruptcy settlement with Consolidated, and therefore could license it to Universal Studios. This is when we learned that sometime shortly after John's death, DMCH sent a letter to Universal informing them that DMCH owned the IP, and future payments should be made to them. Shame on Universal Studios for not doing even the most basic search to verify. Sally lost this case because, simply put, the 2015 agreement said she would not go after DMCH legally for anything. She also lost on appeal. There are a pretty good summaries of the case on loeb and jdsupra and Mercury News.
Many thought that the issue was resolved, but is it?
Attorney Anderson Duff, for example, said (on page 8) "The DeLorean Motor Company as it operates today didn’t get a license from the DeLorean family. All they got was a settlement that said the DeLorean family would no longer sue them. That does not stop the DeLorean Motor Company from claiming that they can claim priority going all the way back to the DeLorean Motor Company". Duff also confirms something that does not seem to be in dispute, yet is misreported "The DeLorean Motor Company that operates today has nothing to do with John DeLorean, who was entrapped by the federal government".
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| Kat DeLorean comments on Instagram |
What does this all mean?? You decide. But, with the money being invested in the marketing for the Alpha5 EV, this information may raise a few eyebrows. We already know that Kat DeLorean, John's daughter, is speaking out about it.
I know how I feel. No one should be able to profit on something they did not create or legally purchase from the rightful owner. It is also important to me that history be correct, and not re-written for profit. Joost de Vries has been quoted as saying "If you go back to the original designers, they never stopped working on DeLorean, They kept drawing DeLorean cars, all through the 90s and 2000s, and that is the story we will tell … (at Pebble Beach) you will see the 1990 DeLorean, and the 2000 DeLorean, and the 2010 DeLorean all the way to the 2023 DeLorean … it’s up to us now, to tell that story.”
Why does Joost get to change history? The DeLorean Motor Company went out of business in 1982. It no longer exists. There is not a 40 year company history to be told. This is a new company making a new car, and (for some unknown reason) using the name of a short lived but beloved car company from 40 years ago. This will only serve to make the name DeLorean the punchline of more lame jokes for DMC-12 owners to endure at car shows. All "car people" should be outraged at this, even if you are not a DeLorean fan. The Alpha5 is #notjohnsdelorean.
That's all fine, but what do you think of the new Alpha5?
I am not an automotive designer, but I know what I like. The renderings of the Alpha5 are not at all impressive to me. It is clearly a 2019 DaVinci with a body kit (See above video from Joshua Warren) that takes design elements from Angel Guerra and Allan Portilho's DeLorean Legacy project that pre-dates DMR. Looks like there may be a new chapter to the tales of DeLorean intellectual property. And I can't figure out why someone would buy a car they can't drive on a public street. Don't believe me? Joost said it himself, "Citing de Vries, Autocar reported this week that the car will be sold in a limited run of 88, in a nod to the movie. Those will be suitable only for use on tracks and not for the road." Are people that dumb? Wait- Don't answer that!!