I haven’t read the full judgement of the Land Rover Defender case, where Jaguar Land Rover sought to protect the shape of the original Defender under trade mark law, to prevent Ineos from proceeding with the Grenadier.
According to Bloomberg, as reported in Automotive News, ‘The judge upheld the findings by the IP Office that while differences in design may appear significant to some specialists, they “may be unimportant, or may not even register, with average consumers.”’
On the face of it, this would appear to be a reason for upholding JLR’s claim—but the Indian-owned Midlands car maker seems to have muddled the cause of action it was supposed to have taken.
I’ve already taken issue with its inability to protect the L538 Range Rover Evoque shape in China under that country’s laws, and while that judgement was eventually overturned in JLR’s favour, the company could have saved itself a great deal of stress had it filed its registration in time. It had been ignorant of Chinese law and wasted time and resources pursuing Ford Motor Company affiliate Landwind for its Range Rover Evoque clone, the X7. I sense Landwind could have afforded the ultimate fine.
Here I think arguing copyright might have been a better method. The Land Rover Station Wagon shape hails from 1949, and with 75 years’ protection, the company is covered till 2024. You don’t need to show a registration, and the onus of proof, once objective similarity is found, is on the defendant. That test of objective similarity, unlike that in trade mark, is not based on what the average consumer thinks, but on what specialists think. And the scenes à faire doctrine has been adopted by precedent in the UK.
Maybe that was the game plan all along: to fail here, and to proceed using copyright later. I’m sure the plaintiff knows this. Now, armed with the judgement’s findings—that the differences are insignificant— Jaguar Land Rover can pursue a copyright claim using these as evidence.
To me, the Grenadier is sufficiently similar. Some point to the Puch G as another source of inspiration but I can’t see it. And since a court has ruled that they can’t see it, either, then Jim Ratcliffe and Ineos had better not break out the champagne just yet.
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