ATTACK ON THE CLONES
Replicas are under the microscope and into the firing line in Sweden
Jaguar Land Rover has responded to criticism following a successful copyright case in Sweden, the result of which orders the destruction of a replica C-type body. The external shape of the original, the Swedish Patent and Market Court ruled, can be considered similarly to a work of art and therefore be protected.
The case was raised against Creare Form AB, owned by Karl and Ann-christine Magnusson, which was planning to market at least two replica examples into the UK. The firm, which has appealed the ruling, has been ordered to stop building the replicas and pay JLR’S £450k legal costs. Further action for damages could be sought should JLR decide to, the court said.
“We welcome the decision,” said Amanda Beaton, global IP counsel for Jaguar Land Rover, adding that: “Protecting our intellectual property is something that we take very seriously. This is an important case in the evolving copyright law landscape across the EU.”
Its importance has not gone unnoticed by enthusiasts or the replica community, many of whom have rallied behind the defendants. A crowdfunding campaign to help pay for an appeal neared kr400,000 (around £35,000) at the time of writing, hoping to raise kr3.5m.
Two of the most important elements surround the originality of the design, which is vital for gaining copyright, and the building of replicas for profit. One C-type had been completed, and through Creare the Magnussons planned to build more, but that decision was dropped when JLR objected, a family statement said. The couple has been told to destroy the existing car, but the Magnussons claim it was built privately and not through Creare. The court found that from 2015 the replica was created by Creare together with the Magnussons. ‘It is therefore not the rule of law that the undisputed production of specimens was made for private use,’ the court ruled.
There is precedent. In 2012, Mercedes-benz Classic destroyed an unlawful replica of a 300SL because the body shape is protected by copyright by Daimler AG. ‘Anyone building, offering or selling replicas of the vehicle is in breach of the Company’s rights,’ the manufacturer said at the time. ‘This even applies if the replicas do not incorporate any logos or trademarks of the Company. Daimler AG has long taken a tough approach to vehicle replicas.’
Ferrari successfully protected the 250GTO in a much-publicised dispute in 2019 that classified the car as a bona fide work of art. Luxury coachbuilder Ares had planned a tribute model based on the F12 or 812 Superfast, but the court of Bologna ruled in favour of Ferrari. However, Ferrari has appealed a recent decision by the European Union Intellectual Property Office in May 2020 that appears to open the door for Ares to resume its plan. Ferrari, the firm argued, had not put the car’s 3D trademark to genuine use in the past five continuous years and it should be released. Neither company has commented on the ongoing matter. Modena-based firm Ares, which is run by former Lotus boss Dany Bahar, previously designed an homage to the 412 based on a Gt4clusso.
Jaguar Land Rover itself has been bitten by copyright cases in recent times, though it successfully stopped Chinese car manufacturer Jiangling producing the Landwind because of similarities to the Range Rover Evoque. In August 2020, Ineos and JLR’S four-year battle fell in favour of Jim Ratcliffe’s company, paving the way for the Defenderesque Grenadier later in 2021.
That was a case that pitted billionaire against manufacturer, unlike this C-type dispute. When the result was made public, Karl Magnusson said: “We are going to have to sell our house and all of our belongings if we lose an appeal. Jaguar would essentially make us homeless.” The couple has already sold its collection to fund legal costs, it says, adding: “Our C-type replica was going to be the cherry on the top of our small private collection of restored Jags.”
JLR insists it tried to avoid litigation and that it: ‘Is disappointed that it had to resort to commencing legal proceedings and only began the lawsuit nine months after we asked Creare to stop their plans to make money from our copyright.’ No further action has been taken with regard to further damages, and no action has been taken for any trademark infringement.
The district court ruling that the Magnussons’ C-type must be destroyed has bred some confusion and dismay, leading to a public response from JLR. An open letter from Dan Pink, director of Jaguar Land Rover Classic, stated: ‘We want to allay any fears amongst the network of enthusiasts that Jaguar Land Rover might pursue individual owners of replica Jaguars and insist upon their destruction. This is not true. We will, however, take action to stop businesses using our Intellectual Property illegally
‘Jaguar Land Rover insists it tried to avoid litigation and is “disappointed that it had to resort to commencing legal proceedings”’
for their own profit, as in this case.’
The letter goes on to state: ‘We have never, nor would we, take action against private owners of pre-existing individual replica vehicles, nor insist upon the destruction of their cars. In this case Jaguar Land Rover offered the defendants an opportunity to retain their completed replica for private use and enjoyment, however this was declined, and the defendants chose to continue with their plans to make money from our copyright.’
The couple has rejected that statement, countering in its own open letter that: ‘JLR have throughout the process insisted on the destruction of the Magnussons’ privately built C-type replica, despite many attempts from the Magnussons to reach a reasonable settlement.’ Jaguar says it offered the couple the opportunity to retain the car in June ’19, and later sought other solutions including a leasing option in 2020, all of which the family declined.
Pink’s letter has gone some way to dampening some smouldering fires, with the Federation of British Historic Vehicle Clubs and Jaguar Enthusiasts’ Club both reassured that no orders will be issued for cars to be dismantled.
Though the district court’s ruling is only valid in Sweden, many within the UK’S replica industry are concerned. How this judgement will impact any possible future cases in the EU and UK remains to be seen. The sound of hatches being battened down has echoed across the many replica
“The replica industry employs a lot of people who have supported the heritage of Jaguar when they have perhaps neglected it”
builders, which account for numerous jobs and the livelihoods of many enthusiasts. “The replica industry employs a lot of people in the UK who have supported the heritage of Jaguar when they have perhaps neglected it over the past 40 to 50 years,” said one leading industry figure, who wished to remain anonymous. “The major component suppliers are spitting feathers, they have been treated shabbily. [Jaguar] are not doing themselves any favours, and there is an avalanche of bad feeling on social media.”
In the summer of 2020, replica maker Suffolk Sportscars closed its doors for good with debts of around £800,000. Johannes Rupping of
Mctear Williams & Wood, the liquidator of Suffolk Sportscars, was quoted in the East Anglian Daily Times as saying: “There was an action regarding copyright infringement brought by Jaguar Land Rover. They were trying to fight it but they effectively just ran out of cash through a combination of that and COVID-19.” The factory did not comment on the matter at the time and Mctear Williams & Wood distanced itself from the quote when contacted.
JLR has meanwhile sought to distance itself from the building of replicas, although observers have pointed out that some individuals within the company own replicas, or have been photographed in them including an image circulated by the Magnussons from the 1980s of Lofty England in a Proteus C-type. A judgement in the case declared that: ‘The defendants have thus not succeeded in proving that JLR, through its actions, consented to all forms of production of replicas or waived its right to invoke its copyright in the Jaguar C-type.’
The fact that replicas were eligible to race in the Jaguar Classic Racing series has been raised and dismissed, with JLR stating that it was a sponsor of the series not the organiser. This has been written out of the rulebook by a new organising club for 2021.
The defendants also argued that email conversations between Karl Magnusson and JLR employees included drawings being shared, with the Magnussons releasing redacted email exchanges showing Karl’s drawings and documents being received. The court declared that: ‘This evidence does not indicate anything other than that the original drawings are in circulation on the market. It is not apparent under which circumstances the producers of replicas got a hold of these or which reservations might have been made on the part of JLR. Merely possessing a drawing regarding a copyright-protected work also does not provide any clear right to produce copies of it. The court therefore does not believe that these circumstances prove that JLR gave any general consent to the production of replicas.’
Magnusson visited the factory on 21 March 2016 while he was in the UK for Jaguar Spares Day. That visit is another point of contention for the family, but the claim that he was invited to discuss his project has been dismissed by JLR, which says it was no different from any other enthusiast wishing to visit the factory and that he met no senior figures. Court documents show that Magnusson met with Jaguar Classic sales manager Stuart Kilvington and Jaguar Classic engineering manager Kevin Riches. While Magnusson claimed he admitted in a presentation that Creare intended to build and market three C-types, the court found that: ‘The evidence in the case does not support the fact that it is clear to neither Mr Kilvington nor Mr Riches that the project presented by Mr Magnusson was commercial or intended to produce more than one car. Both Stuart Kilvington and Kevin Riches have testified under oath that Karl Magnusson should have said nothing about the production of more than one replica.’ It added that: ‘The defendants have not established that JLR, through the actions of its employees, has given specific consent to the defendants to produce copies.’
The Magnussons have lodged an appeal with the Court of Patents and the Market Superior Court in Stockholm relying on the same pleas, facts and evidence.
The case came into the public eye following the announcement of Jaguar’s latest continuation model, which follows in the wheeltracks of the recent XKSS, D-type and Lightweight E-type programmes. Eight examples of the C-type will be built in 2021 to mark the 70th anniversary of the car’s launch.