LEGO Trade mark Application Hits a Brick Wall

The LEGO brick is one of the most commercially successful toys that ever came on the market and a highly recognisable product. It has been around for many years and, in fact, despite its cubical shape, it looks nothing like an ordinary masonry block. Yet, Lego's application to register the image of the LEGO brick as a Community trade mark has now finally failed with a decision on appeal by the European Court of Justice ("ECJ"). The application to register the 3D shape of the brick as a trade mark did not fail due to lack of distinctiveness or insufficient evidence to show that the shape of the product acquired secondary meaning. In fact, it was not in dispute that the applicant met these requirements. The application failed because the shape was deemed to be purely functional, largely on the grounds that it was previously the subject of patent protection (now expired).