What do you think about this non-street legal “Jeep” clone?

[Tokarev]

FCA owns the Jeep name, Mahindra has (or had) a license to build a replica of the Jeep for the Indian market. I don't know enough about how franchise licenses work but I doubt that it would allow Mahindra to sell what is, in essence, a direct competitor to the Jeep in the US. Even if it doesn't bear the "Jeep" name it is so similar in appearance to a "real" Jeep that consumers would likely be confused as to whether it is actually a "Jeep" or not. The legal term for this is "trade dress."

Think of it this way: Suppose Mahindra had obtained a license to make a replica of the 1965 Ford Mustang in India back in the 60's and has continued to make that - a copy of the 65 Mustang - in India.

Then, Mahindra decides to import their Mustang-copy to the US but only to be sold as a "track car" not legal for street use. People then start doing shady things to get them "street legal" in some states.

I suspect the FoMoCo would not sit by and let that happen, even though the "modern" Mustang doesn't look anything like the 1965 version.

So the same thing is happening here.

I somewhat "get" the whole trade dress thing and can understand FCA's concern. But only to a point.

Say, for example, someone decides to copy the Ruger 10/22 and make a very close copy. Features and price are comparable to the Ruger. This firearm is a direct competitor to the original and could be seen as money taken from Ruger's pocket.

But the Mahindra is different. It looks Jeep-ish and shares a direct lineage with the Willys but it is not a direct competitor to the modern Wrangler. Think twins separated at birth. Same mom but raised in different parts of the world. Went to different schools and have different life experiences. Nobody is going to walk into a Jeep dealership looking at a $40,000 Wrangler and decide to buy a $14,000 ROXOR instead. If anything they'll go buy a Toyota 4Runner some other mid-size SUV.

How Mahindra will respond is unknown at this point. Will they continue to fight FCA or will they redesign the look of the ROXOR to appease Jeep? Assuming Jeep can be appeased.



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[Martinjmpr]

BTW Mahindra wasn't the only company to ever make a clone of the old Jeep. When I was stationed in Korea in the 1990's I used to see these SsangYong Korando Jeeps all the time.

 

[Martinjmpr]

I somewhat "get" the whole trade dress thing and can understand FCA's concern. But only to a point.

Say, for example, someone decides to copy the Ruger 10/22 and make a very close copy. Features and price are comparable to the Ruger. This firearm is a direct competitor to the original and could be seen as money taken from Ruger's pocket.

But the Mahindra is different. It looks Jeep-ish and shares a direct lineage with the Willys but it is not a direct competitor to the modern Wrangler. Think twins separated at birth. Same mom but raised in different parts of the world. Went to different schools and have different life experiences. Nobody is going to walk into a Jeep dealership looking at a $40,000 Wrangler and decide to buy a $14,000 ROXOR instead. If anything they'll go buy a Toyota 4Runner some other mid-size SUV.

How Mahindra will respond is unknown at this point. Will they continue to fight FCA or will they redesign the look of the ROXOR to appease Jeep? Assuming Jeep can be appeased.

Well, certainly that could be Mahindra's argument, but FCA could counter by showing the number of people who are modifying Roxor's for street use. That completely negates Mahindra's argument that they aren't competing for the same space.

Actually, not only does it bolster FCA's argument, but you could imagine that the EPA and NHTSA might take an interest since what is happening is, in essence, Mahindra is importing a non-street-legal, non-safety compliant, non-EPA compliant vehicle to the US market that they know (or reasonably SHOULD know) will be illegally modified and used as a street vehicle.

And really, it's not FCA or even the EPA that Mahindra needs to worry about. First time someone breaks their neck in a non-airbag equipped, non-crash tested Roxor that was illegally modified for use on the street, the personal injury lawyers are going to descend on Mahindra like a flock of vultures and pick them clean for using a loophole in the law to sell a street vehicle that does not meet safety standards. At that point redesigning is not what Mahindra will do, much more likely is that they'll just drop it from the US market because it's too much of a liability for them.

 

[Tokarev]

Seeing as how that classic design was mostly thanks to Bantam, Willys Overland and Ford for the US military, I find it amusing that FCA is claiming the design is its trade dress.

Automobiles from the 1930s all had rounded fenders that extended past the hood. Bantam and Willys had rounded fronts similar to trucks of the era. The Willys MB was mostly Willys mechanical and Ford front body design resulting in the timeless look we all know.

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[shade]

At the least, I think Roxor will have to change up the grill; horizontal bars ought to do it.

And really, it's not FCA or even the EPA that Mahindra needs to worry about. First time someone breaks their neck in a non-airbag equipped, non-crash tested Roxor that was illegally modified for use on the street, the personal injury lawyers are going to descend on Mahindra like a flock of vultures and pick them clean for using a loophole in the law to sell a street vehicle that does not meet safety standards.

Bingo. Even if a state has a legal process to allow a Roxor to be used on the street, how will insurance companies view that use? It won't take for a Roxor to be involved in a nasty accident, especially once someone removes whatever is restricting the top speed to 55 mph. A Roxor could become difficult to insure simply because insurance companies will raise the rates so high no one will want to pay for coverage.

At over 3000lbs, Mahindra's claim of the Roxor being a SxS UTV is pretty thin, which I believe is how it's being classified to get it on the street under UTV rules. A six seat Polaris Ranger is one of the larger UTVs on the market, and it weighs less than 2000lbs. Apart from FCA, I can see UTV manufacturers lobbying to keep the Roxor from being classified as a UTV, and it wouldn't be hard to make that case based on weight, towing capacity, and engine displacement - they won't want to say much about crash worthiness, of course.

 

[Martinjmpr]

At the least, I think Roxor will have to change up the grill; horizontal bars ought to do it.



Bingo. Even if a state has a legal process to allow a Roxor to be used on the street, how will insurance companies view that use? It won't take for a Roxor to be involved in a nasty accident, especially once someone removes whatever is restricting the top speed to 55 mph. A Roxor could become difficult to insure simply because insurance companies will raise the rates so high no one will want to pay for coverage.

At over 3000lbs, Mahindra's claim of the Roxor being a SxS UTV is pretty thin, which I believe is how it's being classified to get it on the street under UTV rules. A six seat Polaris Ranger is one of the larger UTVs on the market, and it weighs less than 2000lbs. Apart from FCA, I can see UTV manufacturers lobbying to keep the Roxor from being classified as a UTV, and it wouldn't be hard to make that case based on weight, towing capacity, and engine displacement - they won't want to say much about crash worthiness, of course.

Ah, insurance... that's another can of worms. I didn't think of that because I've never owned a non-street legal/no plated vehicle.

So for those of you who own SXS, ATVs or non-street legal motorcycles, do you carry insurance on them that covers personal injury or liability? And if not, does your homeowners' or renters insurance cover that?

I could see something going down like this: Customer buys a Roxor, and either through shady legal practices or outright fraud, somehow obtains a license plate for it, and drives it on the public roads.

Roxor buyer then gets into an accident and gets hurt. Tries to file a claim with their insurance, but insurance denies the claim because the Roxor owner was using the vehicle in a manner not consistent with how it was titled or licensed (i.e. licensed for off-road use or county-roads only but the accident happened on a state highway.)

Victim then sues the dealer and/or Mahindra for selling an "unsafe vehicle" since they sold a vehicle that could be used on the street but doesn't have air bags, antilock brakes, etc. And even if Mahindra ultimately "wins" it could cost them millions of $$ to do so.

I would think that it wouldn't take too much of this for Mahindra to realize that any money they make from selling the Roxor isn't worth the potential liability.

 

[shade]

In Utah, which is only place I'm even tangentially knowledgeable, you have to have prove you have UTV insurance to get the plate. It's essentially going through similar steps you'd go through to make a dirt bike street legal - mirrors, turn signals, windshield, muffler, DOT tires, speedometer, seat belts. You are limited to non-Interstates, a max of 50 MPH and as of 2018 under 21 are required to wear a helmet (and be in a car seat for infants and toddlers) when on the street. I don't see how Mahindra is assuming any more liability than Honda, Kawasaki, Suzuki or the SxS/UTV manufacturers are. They don't give you a 17-digit VIN or title so if it's not operated consistent with their "off-road only" limitation doesn't the buyer/operator have to assume some responsibility?

I don't think Mahindra is assuming any more liability than other UTV manufacturers. I think insurers may look at the spec sheet of a Roxor and decide there's more risk involved with operating one than a more traditional street-legal SxS, and individual state DOTs may look at it in a different light as well.

Basically, Mahindra and some of their customers want to pretend the Roxor is a Jeep Wrangler and a SxS. I don't think they're going to be able to play that game for long.

 

[Martinjmpr]

I don't see how Mahindra is assuming any more liability than any of the manufacturers. You can buy the parts to make a KDX250 street legal, has anyone successfully sued Kawasaki after a traffic accident? I honestly don't know. They don't give you a 17-digit VIN or title so if it's not operated consistent with their "off-road only" limitation doesn't the buyer/operator have to assume some responsibility?

Well, two points: First of all, I don't think the comparison of a dirt bike and a street bike is the same as the comparison between a Roxor and a 'real' Jeep.

There's no "safety" equipment that a street-legal road bike has that a dirt bike doesn't have, with the possible exception of turn signals.

By contrast, the "street legal" FCA Jeep is going to have at minimum: Antilock brakes, traction control, side-impact protection, rollover protection, and of course, air bags. AFAIK the Roxor doesn't have any of that.

So if someone gets hurt, and can argue that "if this thing had air bags, or side impact beams, or traction control, etc, I would not have gotten hurt" then they have at least arguably a cause of action against Roxor.

The second point is this: Even if you assume for the sake of argument that the BUYER assumes all the "risk" of injury to himself or anyone riding in the vehicle, what if he T-bones an innocent person at an intersection because his brakes locked up? That innocent 3rd party will have a cause of action against Roxor for selling an unsafe vehicle that was the cause of their injury.

 

[shade]

Ah, insurance... that's another can of worms. I didn't think of that because I've never owned a non-street legal/no plated vehicle.

So for those of you who own SXS, ATVs or non-street legal motorcycles, do you carry insurance on them that covers personal injury or liability? And if not, does your homeowners' or renters insurance cover that?

I could see something going down like this: Customer buys a Roxor, and either through shady legal practices or outright fraud, somehow obtains a license plate for it, and drives it on the public roads.

Roxor buyer then gets into an accident and gets hurt. Tries to file a claim with their insurance, but insurance denies the claim because the Roxor owner was using the vehicle in a manner not consistent with how it was titled or licensed (i.e. licensed for off-road use or county-roads only but the accident happened on a state highway.)

Victim then sues the dealer and/or Mahindra for selling an "unsafe vehicle" since they sold a vehicle that could be used on the street but doesn't have air bags, antilock brakes, etc. And even if Mahindra ultimately "wins" it could cost them millions of $$ to do so.

I would think that it wouldn't take too much of this for Mahindra to realize that any money they make from selling the Roxor isn't worth the potential liability.

I don't think Mahindra would take a direct hit, but it could impact sales. Mahindra's position is that they're selling a SxS (it's all over their site), and it should be operated as such within the limits of the law. If an individual decides to operate a Roxor illegally, that's on the law breaking individual and their insurance company, not Mahindra.

The individual's insurance company will be looking very hard for a way to decline coverage, and operating a Roxor illegally will be an easy way to get out of any liability. You can bet that any insurer that gets sucked into covering a Roxor accident will be skeptical of issuing coverage in the future.

 

[shade]

The second point is this: Even if you assume for the sake of argument that the BUYER assumes all the "risk" of injury to himself or anyone riding in the vehicle, what if he T-bones an innocent person at an intersection because his brakes locked up? That innocent 3rd party will have a cause of action against Roxor for selling an unsafe vehicle that was the cause of their injury.

The 3rd party could certainly try suing Mahindra, but if a Roxor is legally on the road, it'll be insured. I think Mahindra would direct the 3rd party to the Roxor owner's insurance company, just like Ford would if an F-150 operator was found at fault in an accident.

 

[Martinjmpr]

The 3rd party could certainly try suing Mahindra, but if a Roxor is legally on the road, it'll be insured. I think Mahindra would direct the 3rd party to the Roxor owner's insurance company, just like Ford would if an F-150 operator was found at fault in an accident.

No, I'm talking about product liability which is a completely different area of law than what you are talking about.

A company cannot escape product liability with a mere warning statement or a waiver. Remember lawn darts? Even disclaimers or safety warnings weren't enough to protect the company in that case and I could see the same thing happening to Mahindra.

If I were a plaintiff's attorney in such a case my argument would go like this: Mahindra sold a vehicle that did not meet safety standards required of all road-going motor vehicles, even though they knew or should have known that people were using them as road-going vehicles. The fact that Mahindra issued numerous warnings about how the vehicle SHOULD be used doesn't absolve them of responsibility if they knew or reasonably should have known that people were using them in a manner that was unsafe.

Would the plaintiff prevail in such a lawsuit? It's possible they would, but even if they didn't, it would cost Mahindra a lot of money (and a lot of bad publicity) to "win."

Which means they still lose.

EDITED TO ADD: Are you old enough to remember 3 wheeled ATVs? I am. There's a reason they're no longer on the market: Product liability.

 

[Tokarev]

Ah, Internet lawyers. My favorite kind...

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[shade]

No, I'm talking about product liability which is a completely different area of law than what you are talking about.

A company cannot escape product liability with a mere warning statement or a waiver. Remember lawn darts? Even disclaimers or safety warnings weren't enough to protect the company in that case and I could see the same thing happening to Mahindra.

If I were a plaintiff's attorney in such a case my argument would go like this: Mahindra sold a vehicle that did not meet safety standards required of all road-going motor vehicles, even though they knew or should have known that people were using them as road-going vehicles. The fact that Mahindra issued numerous warnings about how the vehicle SHOULD be used doesn't absolve them of responsibility if they knew or reasonably should have known that people were using them in a manner that was unsafe.

Would the plaintiff prevail in such a lawsuit? It's possible they would, but even if they didn't, it would cost Mahindra a lot of money (and a lot of bad publicity) to "win."

Which means they still lose.

EDITED TO ADD: Are you old enough to remember 3 wheeled ATVs? I am. There's a reason they're no longer on the market: Product liability.

I wonder if that argument has been used successfully against makers of traditional SxSs that have been granted street legal status.

Yes, I remember lawn darts, leaded gas, and death trikes.

 

[shade]

Ah, Internet lawyers. My favorite kind...

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I have some experience with vehicle law, but please, enlighten us with your opinion.

 

[DaveInDenver]

Ah, Internet lawyers. My favorite kind...

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Pretty sure Martin is actually a real lawyer, so I dunno.