8 October 2019TrademarksSarah Morgan

Land Rover fails to secure TMs for 3D vehicle models

The UK Intellectual Property Office (IPO) has mostly refused car maker Jaguar Land Rover’s attempts to register six trademarks consisting of 3D shapes of Land Rover models.

Last week, the office refused registration of the marks, which cover the shapes of the Land Rover Series 1, Series 2, Defender 90 and 110 models, in respect of most goods and services.

The decision, handed down on Thursday, October 3, stemmed from two oppositions made by Ineos Industries, a maker of petrochemicals and oil products. Ineos is currently undertaking a project to build its own 4x4.

Land Rover had sought to register its marks in relation to a range of goods and services in classes 9, 12, 14, 28, and 37. This included electrical goods in class 9, vehicles and parts for vehicles in class 12, jewellery, watches and badges in class 14, toy and model vehicles in class 28, and repair and customisation services in class 37.

All of Land Rover’s applications were initially objected to because the shapes were considered to be descriptive of a sports utility vehicle and devoid of any inherent distinctive character.

However, after the IPO narrowed its objections, the car maker submitted evidence that the marks had acquired a distinctive character and the examiner published the applications.

Soon after, Ineos opposed the applications, claiming that Land Rover’s marks were devoid of distinctive character, couldn’t be graphically represented and were applied for in bad faith.

The IPO concluded that the contested marks were devoid of any distinctive character in relation to passenger cars, after deciding that the trademarks depict shapes which don’t depart significantly from the norms and customs of the sector.

“I accept that the shapes applied for look very different to those of some other types of vehicles, such as hatchbacks and sports cars, but the test is not whether the shape of a 4x4 vehicle departs significantly from the shape of a hatchback or a sports car: it must depart significantly from shapes used in any sector of the passenger car market, including the 4x4 sector,” said Allan James on behalf of the office.

Toys and games

The same objection applied a number of other goods, including toy cars and games in class 28, and land vehicle engines and parts, components and accessories for land vehicles in class 12.

While the office concluded there was “no merit” in the complaint that the marks are incapable of being graphically represented and rejected Ineos’ contention that the trademarks shouldn’t be registered because they were contrary to public policy as “misconceived and unfounded”, it did make a finding of bad faith.

“Jaguar Land Rover did not have ‘a reasonable commercial rationale’ for seeking to register the marks for aircraft, boats etc. Therefore, on the law as it currently stands, I find that Jaguar Land Rover applied to register the marks in relation to these goods in bad faith,” said the office. The finding was limited to apparatus for locomotion by air and/or water.

On the award of costs, James said that Ineos had been about 80% successful in terms of the proportion of goods/services for which registration of the marks has been refused.

“However, the bulk of the evidence and argument was directed at goods/services relating to land vehicles, and Ineos was wholly successful in this respect,” he added.

Land Rover was ordered to pay Ineos £5,500 ($6,749).

A spokesperson for Land Rover said: “The Land Rover Defender is an iconic vehicle which is part of Jaguar Land Rover’s past, present and future. Its unique shape is recognised around the world, with the heritage shape being trademarked in other key markets.”

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