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Lego brick too 'utilitarian' to trademark

17 September 2010

The design of the iconic Lego brick is purely utilitarian and therefore cannot be trademarked, the European Court of Justice (ECJ) has ruled.

Rival toy maker Mega Brands, which sells a similar product, successfully argued that the Community trademark office was correct to rule that Lego is “only a simple toy-brick shape and is therefore devoid of any distinctive character”.

It is a case which has been brewing for more than a decade following Lego’s initial application to trademark the six-studded red brick in 1996.

The Office for Harmonisation in the Internal Market (OHIM) originally accepted the application, but it was later overruled by the Cancellation Division following a challenge by Mega Brands.

Lego has now lost its appeal against OHIM’s ruling after the ECJ agreed that not even the red colouring was enough to give the famously simplistic building blocks particular character.

“It is beyond doubt that [the] dominant feature – the two rows of studs on the upper surface – are intended to endow a simple toy brick, possessing dimensions of width, length and depth in proportion to a real, life-size building brick, with the… robust and versatile interlocking mechanism which such blocks need to have if they are to be manipulated by a child,” the court heard.

“Clearly the Lego brick’s features were adopted to perform the abovementioned utilitarian function of the Lego brick, and not for identification purposes.”

Under Community trademark regulations, any object that is capable of being represented “graphical”, whether in words, designs or shape, can qualify, provided it is “capable of distinguishing the goods or services of one undertaking from those of other undertakings”.

However, objects which “consist exclusively of the shape of goods which is necessary to obtain a technical result” are not allowed to be registered.

While considering its judgment the court heard that the “original” interlocking toy brick, described as Lego’s “ancestor”, was patented in the UK in 1940 – bearing exactly the same dimensions and circular studs as the modern red sixer.

It also took evidence from the Cancellation Division that the “relative dimension of the height of the studs to that of the walls of the brick” does influence the “clutch power” and is therefore a technical requirement rather than a design feature.

“The Lego brick is wholly functional since there is nothing arbitrary nor ornamental present in it,” the evidence added.

Lego’s appeal was rejected outright and the Danish toy manufacturer was ordered to pay costs.

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