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Wednesday, 21 September 2016

US: Land Rover sues to protect Defender trade mark

I'm sure I could have devised a very clever punning title about protecting "Defender" but I don't fell bright enough just now. The news (from the Law 360 website) is that JLR are suing Bombardier Recreational Products, Inc., in a federal court in Michigan. The Canadian company is making an SUV under its Can-Am brand (isn't that someone else's trade mark? Perhaps from too long ago, and for services rather different from Bombardier's goods) with the model name Defender.

Bombardier's defence appears to turn on abandonment by JLR, which is rather surprising given that they only stopped making their own Defender vehicles earlier this year - and reports from elsewhere indicate that they have in mind to replace it sometime. In the UK (and under EU trade mark law too) the trade mark would remain enforceable until it had not been used for five years, but US trade mark law differs from ours in an important respect (although the two only diverged with the Trade Marks Act 1994 and the Directive on which it is based). Under US trade mark law, what matters is not so much what is on the register as what is being used in commerce, so the arbitrary five-year non-use rule doesn't do it in the States. Whether the trade mark has been abandoned or not is a matter of fact (and, I suppose, law), so if JLR have truly abandoned it they are stuck. But it seems inconceivable that they really have.

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