Image Source<\/em><\/a><\/p>\nHow, you might ask, could Ratcliffe get away with producing a vehicle so similar to the Defender without the consent of JLR?<\/p>\n
Copyright<\/h6>\n
In New Zealand, industrially applied items (i.e those with more than 50 examples produced) fall under copyright law and are protected for 16 years from the date of industrial application (a much shorter term than non-industrial copyright). However, this kind of protection is not the norm in overseas jurisdictions, such as the UK. In most countries that recognise copyright in industrial design, the protection ends as soon as the design is put into production. Unless the owner has sought to register the design, others will be free to copy it. \u00a0Given JLR\u2019s response to Ratcliffe\u2019s plans (see below) one can only assume that no such registered designs existed.<\/p>\n
Trade Marks<\/h6>\n
After rejecting Ratcliffe\u2019s offers, JLR tried to register six trademarks for the different shaped versions of the Defender spanning from the original 1948 model to the 2016 version. The trade mark representations of the \u00a02016 110 model (i.e. my Defender) looked like this:<\/p>\n
![\"\"](\"https:\/\/www.jamesandwells.com\/wp-content\/uploads\/model1.png\")
<\/p>\n
Maybe I am biased (or a total train spotter) but they look distinctive to me. JLR surveyed 495 people to see if they also recognised the car as a Defender, with a \u00a020-40% success rate.<\/p>\n
However, the UK Intellectual Property Office ruled that the Defender was not sufficiently distinctive from other 4x4s to justify the trade marks.<\/p>\n
According to JLR, which is contesting the ruling:<\/p>\n
\u201cThe Defender is an iconic vehicle which is part of Jaguar Land Rover\u2019s past, present and future. Its unique shape is recognised around the world, with the heritage shape being protected in other key markets. Protecting our intellectual property is something we take very seriously, so we are appealing the Intellectual Property Office ruling on the protection of the Defender shape trademarks.\u201d<\/em><\/p>\nOne might well consider that seven decades of inaction to secure the relevant rights belies the \u201cheritage\u201d rhetoric and call into question JLR\u2019s claim that it take its IP \u2018very seriously\u2019. This is not the first time that JLR has unsuccessfully attempted to register elements of the Defender brand. In May last year, the UK Registrar of Trade Marks upheld an opposition by Yorkshire based Twisted Automotive to an application by JLR to register the trademark \u201cLR\u201d in respect of various goods including land vehicles, parts and fittings for vehicles, wheels and their accessories. Twisted opposed the trade mark stating that it had been selling the same goods and providing services under the unregistered sign \u201cLR Motors\u201d since November 2015.<\/p>\n
Incidentally, JLR is in good (or should that be bad?) company. In May this year Ferrari lost a legal battle in the European Union (EU) regarding a trade mark registration for the shape of its iconic 250 GTO which looks like this:<\/p>\n
![\"\"](\"https:\/\/www.jamesandwells.com\/wp-content\/uploads\/gto.jpg\")
<\/p>\n
The 250 GTO is the most expensive car to sell at auction (for a cool USD$70 million:)3<\/sup>, and only 36 units were made between 1962 and1964.<\/p>\nThe challenger, Ares Design, argued that Ferrari had not used the contested design since 1964, and had no intention for future use when they filed for the EU trade mark in 2007. Despite (arguably correct) protestations from Ferrari that the shape of the 250 GTO is \u201crecognised as one of the most glorious and iconic Ferrari cars ever created\u201d, the EU sided with Ares Design and cancelled the registration for all but toy vehicles and scale models which Ferrari had licensed. This decision \u00a0potentially paves the way for other companies to build copycat vehicles or modern interpretations of the Ferrari 250 GTO.<\/p>\n
The published decision stated:<\/p>\n
\u201cIn the present case, the Cancellation Division considers that genuine use of the contested EUTM has been sufficiently demonstrated for the relevant factors in relation to toy vehicles, scale-model vehicles, whereas no use of the mark or proper reasons for non-use have been demonstrated in relation to any of the other goods for which it is registered.\u201d<\/em><\/p>\nAs a result, the European Union Intellectual Property Office said Ferrari had not proven genuine use for a number of goods, which importantly included vehicles.<\/p>\n
The moral of the story? If you design an iconic product you\u2019d better protect it and keep making it, or someone else will.<\/p>\n
If you\u2019re wondering whether I\u2019ll be buying a Grenadier, the answer is: probably not. As much as I admire anyone with the cojones to not only take on one of the world\u2019s preeminent automotive manufacturers, but to name the resulting product after his favorite pub; for me something has gone wrong in the translation \u2013 air bags notwithstanding.<\/p>\n
![\"\"](\"https:\/\/www.jamesandwells.com\/wp-content\/uploads\/landrover-1024x485.jpg\")
<\/p>\n![\"\"](\"https:\/\/www.jamesandwells.com\/wp-content\/uploads\/grenadier.jpg\" "\\"Image")
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