In a David-and-Goliath legal case,
$177 billion General Motors Corp. has
sued Let's Make a Deal, a used-car dealer
on South Virginia in Reno.
GM sells the Hummer H2, a commercial
version of the U.S. Army's
Humvee utility vehicle made popular by
Arnold Schwarzenegger, Andre Agassi
and other celebrities. Let's Make a Deal
sells the H-KIT, a so-called kit car
designed to turn any automobile into a
Humvee look-alike. So the carmaker
decided to sue the northern Nevada
dealer for trademark infringement.
Last week U.S. District Court Judge
David Warren Hagan was expected to
decide if Let's Make a Deal, owned by
Richard Castellanos, can continue to market
the H-KIT as the infringement case
works its way through the legal system.
That could take years. So far, Castellanos
says he has spent $4,000 in legal fees.
Kent B. Hanson, Castellanos' attorney,
argued that the Humvee design was
functional and not entitled to protection
under trademark law.
In a comical aside, Hanson also disputed
GM's claim it properly served the
dealer with papers. He said GM claimed
its process server delivered legal papers to
a managing agent of the dealership.
Hanson contends GM actually served
the papers to "a 17- year-old girl who was
waiting for her mother to pick her up."
(The girl is Castellanos' granddaughter.)
The judge was expected to determine
whether GM properly served the papers
before he decided whether the car dealer
could continue to sell the kit.
Gregory D. Phillips, a partner with
Howard, Phillips & Anderson, a law
firm in Salt Lake City that is representing
the car maker, said GM successfully
served papers to Castellanos after making
an earlier attempt when he was out
of the country. As for the car design,
GM contends it is not functional.
"Under trademark infringement law,
functional means it could not be
designed any other way and be functional,"
said Phillips. The Humvee's roof
and grill are not functional using that
definition, he said.
According to Hanson, kit cars have
attracted other infringement cases,
including ones concerning ersatz
Porsches and Ferraris. Car kits are sold
to create replicas of Cobras, Corvettes,
Lamborghinis and other collectible cars.
He said the cases have not been uniformly
decided so this trademark
infringement case is up in the air.
So far, Let's Make a Deal has taken one
order for its Humvee kit, according to
Castellanos. The dealer owner has created
one H-KIT Humvee himself, on the frame
of a 1998 Ford Ranger, and displayed it
earlier this month in California at the
Sierra Trek event for 4-wheel drive enthusiasts.
The kit is manufactured by MD
Juan Inc., in the Philippines, and imported
by Let's Make a Deal.
