I havenât 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, âThe judge upheld the findings by the IP Office that while differences in design may appear significant to some specialists, they âmay be unimportant, or may not even register, with average consumers.ââ
On the face of it, this would appear to be a reason for upholding JLRâs claimâbut the Indian-owned Midlands car maker seems to have muddled the cause of action it was supposed to have taken. Iâve already taken issue with its inability to protect the L538 Range Rover Evoque shape in China under that countryâs laws, and while that judgement was eventually overturned in JLRâs 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 yearsâ protection, the company is covered till 2024. You donât 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 Ă 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. Iâm sure the plaintiff knows this. Now, armed with the judgementâs findingsâthat the differences are insignificantâ 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 canât see it. And since a court has ruled that they canât see it, either, then Jim Ratcliffe and Ineos had better not break out the champagne just yet.
I did say Iâd blog when Autocade hit 4,100 models, which it did yesterday. Proof that the hundredth milestones arenât planned: the model was the Changan Zhixiang (é·ćźćżçż or éżćźćżçż, depending on which script system you prefer) of 2008, a.k.a. Changan Z-Shine. A less than stellar car with a disappointingly assembled interior, but it did have one thing many period mainland Chinese cars lacked: a self-developed engine.
It shows the nationâs quick progress. The Zhixiang was Changanâs (back then, weâd have written Changâan) first effort in the C-segment, after making microvans, then A-, then B-segment cars, with quick progress between each. The Changan Eado, the companyâs current C-segment sedan, might still be rather derivative, but the pace of improvement is still impressive.
After 1949 through to the late 1970s, Chinese cars in the PRC were few in number, with mass production not really considered. The first post-revolution cars had panels that were hand-beaten to the right shape in labour-intensive methods. Some of those cars borrowed heavily from western ones. Then came licensed manufacture (Jeep Cherokee, Peugeot 504, the Daihatsu Charade at Tianjin) as well as clones (CitroĂ«n Visa, SEAT Ibiza). By the 1990s some of these licensed vehicles had been adapted and facelifted locally. The PRC started the new century with a mixture of all of the above, but by the dawn of the 2010s, most Chinese press frowned upon clones and praised originality, and the next decade was spent measuring how quickly the local manufacturers were closing the gap with foreign cars. Itâs even regarded that some models have surpassed the foreign competition and joint-venture partnersâ offerings now. Style-wise, the Landwind Rongyao succeeds the companyâs (and Ford affiliateâs) Range Rover Evoque clone, the X7, with a body designed by GFG Style (thatâs Giorgetto and Fabrizio Giugiaro, the first production car credited to the father-and-son teamâs new firm) and chassis tuned at MIRA. The Roewe RX5 Max is, in terms of quality, technology, and even dynamics, more than a match for the Honda CR-Vâa sign of things to come, once we get past viral outbreaks. Styling-wise, it lacks the flair of the Rongyao, but everything else measures up.
But the Zhixiang was over a decade before these. Changan did the right thing by having an original, contemporary body, and it was shedding Chinese manufacturersâ reliance on Mitsubishiâs and othersâ engines. To think that was merely 12 years ago, the same year Autocade started.
There has been a lot of ongoing press about Landwindâs copy of the Range Rover Evoque (a road test of the Evoque comes next week in Lucire, incidentally), one of my favourite Sloane Ranger SUVs. Thereâs no way Landwind would have come up with the design independently, and, if put before most occidental courts, there would be a finding in favour of the Indian firm.
People are right to be upset, even in China, which has plenty of firms these days that spend millions on developing a new car and hiring the right talent. The days of SEAT Ibiza and Daihatsu Charade rip-offs are not completely gone, but if you read the Chinese motoring press, the journalists there are as condemning of copies as their colleagues everywhere else.
The impression one gets in the west is that this is par for the course in China in 2015, even though it isn’t. While there have been firms that have gone from legitimate licensing to copying (Iâm looking at you, Zotye and Yema), the reverse has tended to be the case in the Middle Kingdom. The latest article on the Landwind X7 appears in Haymarketâs Autocar, a magazine Iâve taken since 1980. I even think Autocar is being overly cautious by putting copy in quotation marks in its headline. Itâs a copy, and thatâs that.
Landwind has maintained that itâs had no complaints from Jaguar Land Rover, while JLR CEO Ralf Speth says he will complain. Considering itâs been five years since the Evoque was launched, and news of the copy, and Landwindâs patent grant from 2014, has been around for a while, then saying you will complain in 2015 seems a little late.
In fact, itâs very late. What surprises me is that this is something already known in China. Iâm not the most literate when it comes to reading my first language, but as I understand it, a firm that shows a product in China at a government-sponsored show, if it wishes to maintain its ânoveltyâ and prevent this sort of piracy from taking place, must register it within six months, under article 24 of Chinaâs patent law:
Within six months before the date of application, an invention for which an application is filed for a patent does not lose its novelty under any of the following circumstances:
(1) It is exhibited for the first time at an international exhibition sponsored or recognized by the Chinese Government;
(2) It is published for the first time at a specified academic or technological conference; and
(3) Its contents are divulged by others without the consent of the applicant.
The Evoque was shown at Guangzhou at a state-sanctioned motor show in December 2010, which meant that Jaguar Land Rover had until June 2011, at the outside, to file this registration. JLR reportedly missed the deadline [edit: with the patent office receiving the application on November 24, 2011].
The consequence of missing the period is that an original design becomes an âexisting designâ. While itâs not entirely the end of the road for Jaguar Land Rover in terms of legal remedies, it is one of the quirks of Chinese intellectual property law, which, sadly, is not as geared to protecting authors as it is in the west.
The approach one would have in, say, a common law jurisdiction, to prove objective similarity in the cases of copyright (and, as I understand it, a similar approach under patent), does not apply there. (Incidentally, this approach is one reason BMW could not have won against Shuanghuan for its CEO, which is usually mentioned by Top Gear watchers as an X5 copy. Look more closely and the front is far closer to a Toyota Land Cruiser Pradoâs, and thereâs neither a kidney grille nor a Hofmeister-Knick. Itâs a mess, but Shuanghuan could easily argue that it picks up on period SUV trends, like the triangular sixth light found on an Opel Astra is part of a 2000s ĂŠsthetic for hatchbacks.)
If you go back to November 2014, the South China Morning Post reported on this matter, again quoting Dr Speth in Autocar.
Heâs found it ‘disappointing’ for a while, it seems, but back in 2014 there was no mention of going after Landwind. An A. T. Kearney expert backs him up, saying, â⊠copying by Chinese original equipment manufacturers is still possible and accepted in China.â Itâs increasingly unacceptable, but, there are loopholes.
Iâm not arguing that this is right, nor do I condone the X7, but you do wonder why JLR hasn’t taken action. The above may be why JLR has stayed silent on the whole affair.
This is why I read nothing on any action being taken by JLR when the Landwind was first shown, when a patent was granted (a year ago this month), or when the X7 was last displayed at a Chinese motor show.
The SCMP piece is a much fairer article, noting that Chinese car makers have become more sophisticated and invested in original designs. It also notes that consumers are divided: while some would love to have the copy, another felt âashamed about Landwind,â points usually ignored in the occidental media.
Land Rover has traditionally been swift in taking on copycats, and it had fought Landwindâs EU trade mark registration in 2006. This firm is known to them.
Landwind, meanwhile, has a connection to previous Land Rover owner Ford, through Jiangling, which has a substantial Ford shareholding. Could some pressure be brought through Ford?
For now, Jaguar Land Roverâs trouble with its patent registration has yet to make it into the western media. It’s doubtful that state media have ganged up on Jaguar Land Rover, considering it has a partnership with Chery, and invested in a new plant in Changshu. It really needs to be asking its lawyers some serious questions.
