Lego Blocks Too Functional To Be A TM in the EU

The Court of First Instance of the European Communities cancelled the Lego trademark for the shape of its famous bricks. This European Community trademark was registered since 1999. Mega Brands, Lego’s rival, had then immediately applied for a declaration that the registration is invalid. The OHIM declared in 2004 that indeed this mark could not be registered because it was functional. The Court of First Instance just confirmed that decision.

Lego had argued that only signs consisting « exclusively » of the shape of goods « necessary » to obtain a technical result are barred from registration as a TM, but functional shapes per se are not. Lego offered two test to distinguish the fine line between these two types of functional shapes :

1. The shape must have no non-functional features


2. Its external appearance must not be capable of being altered in its distinctive characteristics in such a way that it would lose its functionality.

Lego also argued that according to Philips, where the European Court of Justice had decided that a TM could not be registered if key aspects of its design were purely functional, functional shapes per se are not excluded, only functional shapes whose protection would create a monopoly on technical solutions or functional characteristics of said shape.These arguments did not convince the court.