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14 September 2010

Distinctive Red Lego Brick Held Invalid by the ECJ

Distinctive Red Lego Brick Held Invalid by the ECJ

The ECJ today handed down its judgment in the ongoing case between Lego Juris A/S v OHIM and Mega Brands, Inc regarding the registrability of Lego's familiar red brick 3D trade mark.

Following the judgment in Philips v Remington (case C-299/99), the Court held that Lego's trade mark for the red brick shape was invalid as the shape was necessary to obtain a technical result, regardless of the fact that the bricks could take the form of many shapes.  One of the grounds for holding that the shape was invalid was the existence of some of Lego's own earlier patents for the bricks.

The Court held that "if various functional shapes for goods were registered at the same time, this might completely prevent other undertakings from manufacturing and marketing certain goods having a particular technical function".

The Court did raise an interesting point by holding that although a company that has developed a technical solution cannot be granted a monopoly right through the registration of a trade mark that prevents competitors from copying the technical solution, the matter could be considered in light of the rules on unfair competition.  However, it admitted that the examination of such a prospect was outside the scope of these proceedings.

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