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The Lego red brick

Having recovered from the embarrassment of the weekend, I was a little surprised to read this piece on Lego‘s long running trade mark battle over registration of its brick shape, which has ended in a nay from the ECJ.

It began in 1996, when Lego lodged an application at OHIM (Office for Harmonisation in the Internal Market), the Community trade mark(CTM) registration office,  for a CTM on a red toy building brick.

The application did initially succeed, but only for the registration to be declared invalid after a Canadian company and rival brick builder, Mega Brands Inc, succeeded in convincing OHIM that Lego’s brick’s  features only served a functional purpose and, despite Legos being one of the most instantly recognised toys in the world, did not have Trade Mark identification function. The shape of the Lego brick was found to be necessary to assemble toy bricks together.

The Court of First Instance affirmed OHIM’s finding of invalidity, insisting that EU law excluded from registration  shapes that were necessary, in their most important characteristics to obtain an intended technical result, even if the same result could be achieved by other shapes using the same technical solution.

In today’s ruling, the ECJ has ruled that functional shape of a brick was not registrable as a trademark.

This case is similar in some respects to Philips vs Remington (2002 ,  Case C‑299/99) which found that the essential functional characteristics of the shape of Philips device were attributable solely to the technical result, and therefore not registrable, although I couldn’t disagree more against the assertion that the Lego’s brick shape cannot act as a Trade Mark, and the shape is solely functional.



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