In January of 2016, after 67 years, Jaguar Land Rover (JLR), owned by Indian company Tata, ended production of the iconic and beloved Land Rover Defender four-wheel drive vehicle. The first Defender, aka Land Rover Series, began sales in 1949 post-war Britain. The intended use was for agricultural purposes. The design was similar to the WWII Willy’s Jeep (manufactured by Willys-Overland Motors). Over the course of its 67-year history, Land Rover Series and Defender vehicles reportedly sold just over two million vehicles. As a point of interest, at its 1949 debut, the Land Rover Series was the first four-wheel drive, mass-produced civilian car with doors.

The Defender has many fanatics. One of those passionate Defender-lovers is a U.K. billionaire, Sir Jim Ratcliffe. Unhappy with the loss of the Defender, he attempted to buy the old Defender production line, but JLR turned him down. So, Sir Jim Ratcliffe created a company, Ineos Automotive, to mass-manufacture his own version of the Defender, named the Grenadier.

The Grenadier is designed with the Defender in mind. Sir Jim Ratcliffe has been vocal about the JLR Defenders not living up to Defender’s original standards as “workhorse” vehicles. He told the U.K.’s The Daily Telegraph that he was going to build “his spiritual successor” to the Defender.

According to AutoWeek.com, the Grenadier “… arguably features a number of design elements associated specifically with Land Rover.”

The head of design for Ineos, Toby Ecuyer, spoke with AutoWeek.com

“The brief was simple. We set out to design a modern, functional and highly capable 4×4 vehicle with utility at its core. A design that is ‘easy-to-read,’ with no ambiguity about the Grenadier’s role in life. There to do everything you need, and nothing you don’t. Nothing is for show. Modern engineering and production techniques ensure the Grenadier is highly capable, but we have been able to stay true to the essence of creating a utilitarian vehicle that will stand the test of time.”

Although Ineos had the passion and the resources to manufacture the Grenadier, JLR threw a monkey wrench into Grenadier’s production plans: JLR went to court to sue over trademark infringement. JLR’s case revolved around its claim that the shape of the Defender should be protected as a trademark.

There is a legal definition of a trademark, unlike the definition of a brand. (There is no legal definition of a brand. Many marketers, including the American Marketing Association, unfortunately use trademark and brand interchangeably.)

A trademark indicates the exclusive source of a product or service. The essential service of a trademark is to guarantee the identity of the origin of the trademarked product or service so that consumers/end-users are not confused. Trademarks serve to identify a particular entity as the source of goods or services. In other words, a trademark is a badge of origin.

This badge of origin idea was at the heart of JLR’s case. JLR contended that a consumer looking at a Defender would recognize Defender’s source as Land Rover.

The JLR claim is debatable, as Land Rover acknowledges that many of the Defender design elements are common to a number of current and past non-Land-Rover vehicles. In fact, the Defender owes a lot to Willys Jeep, as an inspiration.

JLR has been trying to trademark the Defender’s shape for four years. JLR lost a case in the U.S. against Bombardier Recreational Vehicle’s Can-Am Defender, an ATV.

In the U.S. suit, JLR claimed that Defender was “… the heart and soul of the Land Rover brand.” There were problems with the JLR US case. One was that Defender was no longer sold in the US. Another was Bombardier’s claim that the Defender 4×4 served a different marketplace than the Can-Am Defender, an all terrain vehicle. Consumers are usually no confused if one product is in a different category from another, for example Bass Ale and Bass Pro Shops.

The Ineos lawsuit was a bigger deal. And, a bigger loss. JLR stated that, “The Land Rover Defender is an iconic vehicle which is part of Land Rover’s past, present and future. Its unique shape is instantly recognizable and signifies the Land Rover brand around the world.” JLR lost its case in the U.K. High Court.

JLR had previously gone before the U.K. Intellectual Property Office (IPO). The U.K. IPO ruled that the shapes for which JLR sought protection were not distinctive enough to be protected by trademark law. The “two-box” shape of the Defender sitting high off the ground is a basic 4×4 shape.

The judge sitting in the High Court supported the earlier U.K. IPO ruling saying that while the Defender design elements may be “significant” to some specialists, “… they may be unimportant, or may not even register, with the average consumer.” She added, “The High Court has confirmed that the shape of the Defender does not serve as a badge of origin for JLR’s goods and therefore lacks the necessary distinctiveness to be a trademark.” A trademark must be capable of distinguishing the goods and service in which it is used or will be used from other goods and services in the course of trade. According to the High Court judge, JLR failed to prove this in regards to the Defender. Ineos Automotive, with Sir Jim Ratcliffe’s funding, is considering the purchase of a defunct Daimler factory in France.

JLR introduced an all-new 2020 Land Rover Defender in September 2019. It shares no components or technology with its predecessors.

Losing this case means that the Defender is just another 4-wheel drive vehicle. Without a promise of relevant distinctiveness, Defender could be on its way to being a commodity.

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