QOTD: Why Can’t FCA And Mahindra Be Friends?

The “Side By Side” segment is filled with many interesting off-road vehicles. Chief among them? The Mahindra Roxor. It’s essentially an updated Jeep CJ. You can buy one right now for about $16,000. But it’s not street legal. And it might be banned in America if FCA gets its way.

If you haven’t been following the latest FCA vs. Mahindra developments, here it is in a nutshell. FCA thinks the Mahindra shouldn’t be sold in America. This ongoing fight started in 2017. Unfortunately for Mahindra, FCA seems to be winning, as a judge representing the United States International Trade Commission recently decided the Roxor violates Jeep’s trade dress. Trade dress refers to the visual aspects that make a copyrighted product unique. The judge concluded that the Roxor infringed on Jeep in six specific areas.

This latest decision is not a final ruling. The 96 page decision by Administrative Law Judge Cameron Elliot will go before the United States International Trade Commission, which is a federal agency. They’re the ones who will decide the Roxor’s fate. Mahindra obviously disagrees with the ruling, and in a statement to Jalopnik, fiercely defended their business model and the Roxor itself. Here is the statement in full:

“We are aware of recent media reports about an initial ruling made a few weeks ago by an Administrative Law Judge (ALJ) in our International Trade Commission (ITC) matter with FCA. The articles boil a 91-page opinion down to a few sentences, include misleading characterizations about the litigation to-date and fail to include several important and relevant facts about Mahindra and ROXOR.

For example, the reporting fails to point out that the ALJ concluded Mahindra’s ROXOR does not infringe on any of FCA’s registered trademarks and does not dilute FCA’s claimed Jeep Trade Dress. While the initial ruling concludes that the ROXOR violates “Jeep Trade Dress,” until this case, FCA had never defined what it believes to be the “Jeep Trade Dress” or identified it as a business asset in any filings (bankruptcy or otherwise). Instead, at trial, FCA admitted that it believes it can define and redefine its “Jeep Trade Dress” depending on the product it is challenging – an unreasonable, anti-competitive, anti- business stance that, if successful, could cost good-paying American jobs.

It should also be noted that while the articles reference the Jeep CJ, no mention is made of the fact that FCA has not offered the CJ in the United States market for over thirty-five years. They also don’t mention that ROXOR is an off-road only vehicle or that it sells for under $16,000. Nor do the articles discuss the fact that no ROXOR owners bought the vehicle thinking it was an FCA/Jeep product.

The ROXOR was engineered and developed in the U.S. and is based on the same platform as Mahindra’s Thar vehicle that is sold in India and many other markets. Mahindra has been manufacturing the Thar and its predecessors since just after World War II. The ROXOR’s resemblance to the CJ and military-style Willys jeep is directly related to this 70-year heritage.

The ROXOR is manufactured in Auburn Hills, Michigan at the first assembly plant to be built in Southeast Michigan in over a quarter of a century. Mahindra has invested hundreds of millions of dollars into building its U.S. operations and currently operates multiple facilities in the Detroit area. It employs more than 400 U.S. employees and hundreds more through its network of over 400 dealers and U.S. suppliers.

Ultimately, the ALJ’s opinion is only a recommendation, and we have asked the entire ITC to review it.

The ITC has the discretion to either adopt the ALJ’s opinion in whole or in part, rewrite parts of it, or completely reject it. Therefore, it is very important to wait for the ITC review to be finalized. While there are reports of a cease and desist order with respect to the ROXOR, no such order has been entered. Finally, it was Mahindra, not FCA, who commenced the legal action in the Federal District Court in Michigan. We did this in an attempt to enjoin the ITC action and assert injury claims to our business and reputation as a result of unfair and anticompetitive actions by FCA.

We look forward to the next stage of the ITC’s review process and will continue to stand by the truth, genuineness and authenticity of our business.”

Basically, Mahindra feels that FCA cannot properly define how the Roxor directly infringes on any modern Jeep product. They also feel that the Roxor does not compete with Jeep because it cannot be legally driven on public roads. Mahindra also pointed out that to date, no Roxor owner has come forward saying they were confused as to whether or not the Mahindra was a Jeep product. These all seems like pretty reasonable arguments.

I think there’s a pretty easy solution here. To my knowledge, FCA/Jeep does not build any type of side-by-side vehicle. Why can’t they just sign an agreement with Mahindra that nets them a percentage of the Roxor’s profits? Heck, Mahindra could even explicitly build Jeep their own CJ side-by-side. Why hasn’t this happened? Does a Wrangler or other modern Jeep compete with these things on off-road courses? That’s the only reason why FCA might feel it necessary to get the Roxor banned. But that seems farfetched to me.

But what do you think? Any lawyers out there want to chime in about Mahindra’s chances?