New Mega/Lego row brewing?

Lego is asking the EU to overturn its decision to reject its trademark protection of its brick design.
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Lego has asked a European Union court to protect the shape of its toy bricks and overturn an EU trademark agency's decision to reject the Danish company's application.

The EU's trademark agency in 2006 decided Lego's bricks can't be legally protected because their shape is functional and not decorative. The 27-nation bloc's trademark authority dismissed Lego's argument that the knobs on top its toy bricks give it a "high degree of distinctiveness.''

Lego won an EU trademark on the blocks' shape in 1999, but Mega Brands objected. It argued that the shapes of Lego's bricks serve a technical purpose and can't be protected under EU law. Lego appealed to the European Court of First Instance in Luxembourg.

"What we're looking at is a very attractive and well-known product shape and that is what makes copying it so appetizing,'' Verena von Bomhard, Lego's lawyer from Lovells LLP, told the EU court.

"The Lego brick is a shape with a function, but it's not the shape that's necessary to achieve the function.''

Lego's building blocks consist "exclusively'' of a shape needed for a technical result, the EU agency said in its 2006 decision. The two rows of studs on top of Lego's bricks are intended to endow the toy brick "with the necessary robust and versatile interlocking mechanism which such blocks need to have if they are to be manipulated by a child,'' the agency in Alicante, Spain, said.

"The existence of alternate shapes cannot make a shape non- functional,'' said Dimitris Botis, a lawyer for the EU agency.

Lego's lawyer von Bomhard, who works at law firm Lovells, said trademark protection would leave competitors free to produce bricks that aren't exact copies. Empirical evidence by Lego showed "that there would be no risk of confusion.''

Lawyers for Mega Brands said that Lego is seeking to protect the only successful shape for the interlocking toys.

"This is not a small favor that Lego is asking from the court,'' said Patricia Cappuyns, a lawyer for Mega Brands. "This shape works the best functionally and it's also the most successful commercially.''


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