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ECJ: no trademark protection for Lego brick

On 14 September the ECJ acknowledged that the famous shape of the LEGO brick cannot be protected by trademark rights. In 2008 the General Court already decided accordingly. The 3D LEGO mark is void, as the shape exclusively serves to achieve a technical result. The fact that the same result can be achieved by other shapes using the same or another technical solution, does not alter this principle (we knew that already from the Philips/Remington case). 
This also applies “when all the essential characteristics of a shape perform a technical function, the presence of non-essential characteristics with no technical function being irrelevant in that context.” 
This is what patent protection is for, but the Lego patents have long lapsed. The 3D mark of 1986 was an attempt by Lego to protect the bricks after the lapse of its patents. At first Lego succeeded: the OHIM accepted the 3D trademark. But competitor Mega Brands successfully filed a cancellation action. Earlier this year the Dutch Supreme Court also rejected Lego’s call on the principle of slavish imitation (unfair competition) under Dutch law in a case between Lego and Mega Brands (see our NEWS 04-2009). It’s about time for Lego to introduce another innovative toy!
Maarten Haak

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