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Lego toy brick before the ECJ

October 2010 - Intellectual Property. Legal Developments by Norrbom Vinding Law Firm, member of ius laboris.

More articles by this firm.

The well-known three-dimensional shape of the Lego toy brick cannot be protected as a Community trademark. So said the European Court of Justice in a recent judgment.

The shape of a product as such may be registrable as a trademark. To register a trademark, the company behind the product must apply to have the shape of the product protected as a trademark in Denmark or as a Community trademark. Lego filed an application to have their famous Lego toy brick protected as a Community trademark - and successfully so, initially.   But shortly after the registration, Lego's main competitor in the market applied to have the trademark held invalid - and successfully so. For under the Community Trademark Regulation, signs that consist exclusively of the shape of goods which is necessary to obtain a technical result are not registrable. This had to disqualify the Lego toy brick from registration, according to EU's trademark authority initially and then the General Court.   In its appeal to the ECJ, Lego mainly argued that the shape of the Lego toy brick was not necessary to obtain the technical result. Bricks can interlock and be assembled even if their shape differs from the Lego toy brick's. But the ECJ did not agree. The ECJ held that the necessity test, ie that the shape of the product must not be necessary to obtain a technical result, does not mean that the shape in question must be the only shape that makes it possible to obtain the technical result.


Norrbom Vinding notes:

  • that the ECJ's judgment is based on the premise that trademarks are not intended to grant a monopoly on the shape of a brick which is necessary to attach it to other bricks. This means that Lego may not enjoy a monopoly on an assembly technique through a trademark registration. Not even if the Lego toy brick has become distinctive within the meaning of trademark law through its use as a trademark;
  • that the case might have had another outcome if the ECJ had found that non-functional elements (such as a decorative or imaginative element) play a bigger a role in determining the brick's shape than held by EU's trademark authorities; and
  • that it remains an open question how much of an emphasis on non-functional elements there must be for shapes to qualify for protection as a Community trademark.