At a case management hearing in the Federal Court of Australia today, legal representatives for Jeep and Mahindra went head-to-head to dispute the terms of an agreement which would effectively ban the Mahindra Thar – a Jeep Wrangler look-a-like – from being marketed and sold in Australia.
In addition to Jeep commencing Australian Consumer Law proceedings against Mahindra for alleged “misleading and deceptive conduct”, “passing off”, and “infringement of registered designs”, the US car giant is seeking an undertaking Mahindra will not launch the Thar in Australia – and provide at least 90 days written notice if ever there was an intention to do so.
The Mahindra Thar – a new model that appears to be inspired by the Jeep Wrangler’s distinctive design themes – was launched in India in the second half of 2020.
On its Indian website, Mahindra says the Thar has "a modern take on an iconic design". It adds: "The all-new Thar, with its wide stance and iconic lines, stands out wherever it goes."
Patrick Flynn (SC), representing Jeep, told the court that, earlier this year, Mahindra “advertised locally that the vehicle was coming to Australia”.
Mahindra had published an expressions of interest page on its Australian website (pictured below).
Although the page has since been taken down, respondents to the email list were advised by Mahindra: “Thank you for your enquiry on the all-new Mahindra Thar. As we get closer to launching this exciting new vehicle in Australia, we will communicate with you via this email address.”
The direct marketing email from Mahindra then listed links to Mahindra’s Australian website and social media pages.
The court heard one Mahindra Thar vehicle “has been imported into Australia for testing,” however the certification process known as homologation “has not commenced and no vehicles are available (for sale) … in Australia”.
Above: A photo of a camouflaged Mahindra Thar being tested on Australian roads.
John Hennessy (SC), representing Mahindra, told the court that before today’s hearing, Jeep was “provided with a letter that informed them … that Mahindra had no present intention to import and sell the Thar vehicle in Australia”.
“Nevertheless, (Jeep) went ahead with commencing this proceeding,” said Mr Hennessy.
Legal representatives for Jeep are seeking an assurance from Mahindra that it will provide written notice of any plans to introduce a Jeep Wrangler-like four-wheel-drive at least 90 days before the commencement of the vehicle certification or homologation process.
However, the legal representative for Mahindra told the court his client proposes a 45-day notice period.
Justice John Halley asked the legal representative for Mahindra if the company had a problem with 90 days written notice – as opposed to 45 days written notice – and “if so, what’s the concern?”, especially given the undertaking by Mahindra that there were no plans to introduce a Jeep Wrangler-like vehicle.
Justice Halley said: “Reading between the lines … unless this is a carefully crafted undertaking, there is no present intention by (Mahindra) to introduce any further or additional or evolved model into Australia at this time.”
The Mahindra representative repeated claims his client currently has no intention of introducing the Mahindra Thar vehicle in Australia. This is despite a recent – but since discontinued – promotion on Mahindra’s Australian website.
“I’m instructed that no homologation process has been commenced,” said Mr Hennessy, representing Mahindra.
Despite the assurances, representatives for Jeep said there was a concern Mahindra could use the proposed shorter notice period to bring a car to market or promote it before certification work had commenced.
The legal representative for Jeep told the court: “It’s clear (Mahindra) wish to reserve … the ability to (promote) a new model even before the notice period kicks in. That heightens our apprehension.”
The hearing was adjourned until the next case management hearing due on 21 May 2021.
A statement on behalf of Jeep, issued after today’s hearing, said the US car giant has “requested that Mahindra immediately cease and desist from all activities related to the import, distribution and sale of the Thar product in Australia”.
“FCA (the parent company of Jeep) firmly believes that Mahindra is seeking to intentionally infringe the intellectual property rights of our Jeep brand, specifically the Jeep Wrangler,” the statement continued.
“FCA will pursue all available avenues to stop Mahindra from continuing to make misleading and deceptive representations in relation to our Jeep brand, pass off their Thar as a Jeep Wrangler, and infringe our design rights.”
CarAdvice contacted a representative for Mahindra Australia and requested a comment, but the company said it did not want to make a statement while the matter was before the court.