Dr. Markus R. Frick, LL.M., Esq.
Originally published in the Swiss Federal Reporter as BGE 129 III 514.
As reported earlier, the Commercial Court of Zurich had admitted the claim against the Danish toy manufacturer Lego lodged by its main competitor, Mega Bloks, Inc., declaring five registered shape marks of their toy bricks in different sizes void. The Zurich court found that the attacked trademarks were functional and thus lacked distinctiveness.
On Lego’s appeal, the Supreme Court agreed in its recently published decision (BGE 129 III 514 = Swiss Federal Reporter) with the lower court that the rectangular form of the bricks was obvious and did not deviate from the expected and the common. However, the Supreme Court found in contradiction to the prior instance that the interlocking function of the bricks achieved by cylindrical studs did not characterize the nature of toy blocks.
