TOY FAIR DAILY: Lego on course to lose appeal in trademark case

The Advocate General argues the lego brick is completely functional and should be kept freely available for use.
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The matter has now been referred to the European Court of Justice and a ruling is expected in the near future.

Lego applied to register its brick as a Community trade mark in 1996. The Community Trade Marks Office granted the registration in 1999 but Mega Brands, applied to cancel the registration just two days later.

The mark was cancelled for a number of reasons but primarily because it consisted of a shape which performed a technical function.

Lego is appealing the decision of the Community Trade Mark Office to cancel its trade mark registration and after two unsuccessful appeals, the case has now arrived at the European Court of Justice.

In his opinion to the European Court of Justice, the Advocate General argued that the lego brick was completely functional and that there was a public interest in keeping functional shapes freely available for use by everyone.

The Advocate General therefore recommended that the European Court of Justice dismiss Lego’s appeal and cancel the brick trade mark registration.

Fiona McBride, trade mark attorney at Withers & Rogers, a leading intellectual property firm, said: “It is possible to register shapes as trade marks under certain circumstances but not where they solely perform a technical function.

"Mega Brands objection seems robust and the European Court of Justice is likely to follow the Advocate General’s opinion, cancelling Lego’s registration of their brick as a trade mark."

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