Land Rover and Range Rover are brands with enviable recognition factors, both as brands as such, and also as to the vehicles sold under them. The venerable Land Rover Defender remains every would-be country gent’s badge of authenticity, even if he has no intention of soiling his Barbour with any actual farm work. The Range Rover is ubiquitous at gymkhanas, air shows and all over the most desirable residential areas of London. And when the Evoque was launched as a more compact, urban-friendly addition to the range in 2011 it quickly earned an impressive array of awards, from Top Gear’s 2011 Car of the Year to 2012’s World Design Car of the Year, Women’s Overall World Car of The Year and Women’s Top World Luxury Car of the Year. It is, indeed, highly recognisable, although less eye-catching now that some 100,000 are on the road.
No surprise, then, that Jaguar Land Rover want the best possible IP protection for their newest star. But their attempt to register a three dimensional Community trade mark has been rejected, by OHIM, the Boards of Appeal and now the General Court. OHIM pronounced that the mark was devoid of any distinctive character, as none of the features departed significantly from the usual shapes of cars. Except, that is, insofar as the specification of goods is limited to “apparatus for locomotion by air or water” – the flying Evoque, and the amphibious version, may yet reach the register.
The case illustrates how restricted European law is when it comes to treating the shape of a product as a trade mark, regardless of how well-known the shape may be. Jaguar’s application was for the six views of the car, shown below:
The General Court pointed out that it is more difficult to register the shape of a product as a mark because it is a settled principle of European trade mark law that average consumers are not in the habit of making assumptions about the origins of products on the basis of their shape or the shape of their packaging, in the absence of any graphic or textual element. Something more than a variant of a common shape for the type of product is necessary to establish that the proposed mark has distinctive character. In the analysis of the Boards of Appeal, “the features visible [in the drawings] were typical for modern cars, such as a flat windscreen, a rounded front, a sloping coupe roofline, a rising waistline, bumpers as well as front and back lights integrated into the hull, and the airflow (aerodynamic) wing at the top of the rear. Furthermore, the car grille was extremely sketchy and there was no particular feature visible. The impression was that of a very stylised drawing of a car…”.
Jaguar Land Rover were not impressed, pointing out that the drawings created by experienced automotive designers to an internationally high standard were “intelligible, unequivocal and objective”. Unfortunately for them, as the General Court pointed out, a drawing can be all of these things and still not depart from the common shape of a car. Jaguar also protested that the shapes of other cars have been registered as three dimensional marks, but this does not address the objection either. In any case, some of those shapes may have acquired distinctiveness through use – an argument which remains open to Jaguar should they attempt to re-file the application in the future, though evidence will of such distinctiveness with then be required. Attempts to persuade the Board of the drawings’ distinctiveness by presenting reviews and photographs of actual Evoques failed: the Court agreed that since there was nothing in the application itself claiming that this drawing was of the Evoque, the extrinsic evidence was not relevant. The Court also pointed out that the photographs include additional features which could contribute to the distinctiveness of the whole, such as the grille and uprights. Accordingly, the reviews added nothing to the assessment of distinctiveness of the drawings in issue.
This decision illustrates the care which needs to be taken in deciding precisely what should be included in any application for a three dimensional mark over a complex product, even when the product in question is itself easily recognisable. It is remarkable how a viewer familiar with the product ‘in the flesh’ can read into line drawings contrasts and emphasis that actually are not there, and so present an application which may faithfully represent the aspects which it captures at all – but fail to capture that unique spirit of the product which might lift the application beyond the threshold of ‘mere typical variant’.