FCA Vote No

Just in case someone wants to hear the other side of the argument, though some of this content is in the related thread "FCA Vote Yes".

The “FCA Vote Yes” thread is useful and has some understandable views but there is still a substantial “vote no case” - just like last time.

Independent of the “vote yes” or “vote no” question, there are also major problems with detail of the process that the National Committee has put in place.

First is that common sense, if not the AGM in 2005, points to a requirement for FCA members to be informed, as part of their vote, by a “yes case” and a “no case”. This has not happened.

Second is that the members have been advised by the President (and National Committee) that there is no need for “approval” by the members of the proposed Ferrari Agreement - because there is no conflict between the proposed Agreement and the existing FCA Rules. To be fair to the National Committee, this is consistent with advice from Freehills, but that advice is CLEARLY WRONG !

To expand on this point and keep things simple by paraphrasing (not that anything is simple in law) - the current Rules provide for FCA to sell all kinds of goods while the proposed agreement seeks to over-ride this by adding the caveat, “but Ferrari sourcing and approval is required if the goods bear the words Ferrari Club Australia”. This additional caveat is in affect a change in the FCA Rules and needs to be treated as such. There seem to be other conflicts too that the ACCC and CAMS might be interested in but I won’t detail those there.

If the above is valid, and I’d be happy for it to be shown otherwise, it means that the vote being held needs 70% and not 50% for it to be adopted. But, even in the event that more than a 70% “yes vote” is achieved the outcome will still be illegal and probably unenforceable because the procedure/motion is wrong.

If all the above were kosher, there is still the matter of whether to vote “yes” or “no”.

While it is attractive to vote “yes” for a number of reasons we should be very clear about what is being given away.

The only two things that are valuable in the current dispute are the name Ferrari Club Australia, and its current membership. Future support by Ferrari is not specified in the proposed agreement and whatever happens, all current FCA members will have access to whatever support Ferrari provides in the future to a club somewhere.

The two things that are valuable are the two things that the FCA members actually own - yet it seems some are apparently happy to give these to Ferrari Spa for nothing. There is a possibility that Ferrari may continue to give support at the level of (say) $12000 a year like in the past, once the Agreement is signed, but there is no guarantee - and presumably less probability once Ferrari gets what it wants. And for this pittance, FCA members get to lose nearly all their freedoms - the freedom to associate with any Ferrari club, the freedom to criticise Ferrari, the freedom to buy and sell anything with the word Ferrari on it, including Ferrari Club Australia (and even if we don’t infringe by using the Ferrari word logo or the full FCA logo), the freedom to associate with any sponsor, and the freedom to go our way if we find Ferrari too much of a pain to deal with. I have some trouble distinguishing between this sort of environment and living in a fascist state.

While it is not unexpected for “yes” vote people to act out of fear about what the outcome might be in the event that Ferrari Spa decide to do their own thing, it is interesting to note the quite strong following and even prestige that something like the V12 Rally has achieved in the few years of its existence while being independent of any Ferrari club.

All this is against a background where there is a straight forward clause in the Trademarks Act to protect us if we had the guts to use it, and where many would take the view that Ferrari have acted most unreasonably. The reason for this situation is simple of course. FCA is a social car club who likes all things Ferrari and do not want to fight, and Ferrari Spa is a commercial entity whose only interest is money (and corporate ego).

What Ferrari Spa ask for is simply a step too far - and I am not going there.

 

Wow - you sure know how to lead with your chin - but I knew that already. A bit of first hand knowledge would help 'cause that secondhand stuff is so unreliable.

1. What is IP and what is not is pretty clear, except to any lawyer who wants to earn money from Ferrari. So far as I know it is not for any person to remove a "good" that seems to contravene IP. I am not sure but as I understand that part of the issue, is more about who made and sold the product in the first place, not who bought it.

2. If you can't see the down side to signing the agreement perhaps you really can't see anything as clearly as you wish.

3 Won't make a lot of difference to organisation except perhaps regalia supply - then it will probably be the limited standard range that Ferrari offer and at the price they/their franchisee determines- and much of which you can pretty much get in the Ferrari shop anytime. Oh, then there is the little issue of no sponsor that Ferrari chooses not to approve.

4 Someone offering to start up another club may not of helped negotiations with Ferrari, but our difficulties began long before that - and essentially derived from the game Ferrari played and how it was managed. Ferrari says, "yes we willl get back to you on that with some points.." Result: Zip, Nil, Nothing......for 3 or 4 years.

5. Ferrari have never negotiated in the proper sense of the word and have only ever given the absolute minimum that they had to, including in this current round.

6. It is easy to have a good relationship with CAMS, you just ignore their own rules and do what they want - rather like being raped really and calling it consensual sex really. If you try and do anything differently you will have a poor relationship, and specially if someone from Victoria is on their side and throwing lots of stones - but you can be sure that CAMS will always talk to you if you want to pay them the money they ask. Have you forgotten that AASA arose out of exactly the same sort of one way interaction, or is that intercourse, with CAMS - and that the outcome of the whole sad saga is that CAMS did not get what they wanted and the FCA is about $40,000 better off.

7.l You might be right about the cost of not signing the agreement, but there is no reason to believe that your judgement is any better than anyone elses.