Journal Article

The shape of the Lego brick is free for all to use

Patricia Cappuyns

in Journal of Intellectual Property Law & Practice

Volume 4, issue 7, pages 499-505
Published in print July 2009 | ISSN: 1747-1532
Published online May 2009 | e-ISSN: 1747-1540 | DOI: http://dx.doi.org/10.1093/jiplp/jpp069
The shape of the Lego brick is free for all to use

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Legal context

Shapes are in principle eligible for trade mark protection. However, in light of Article 7(1)(e)(ii) CTMR as interpreted by the European Court of Justice in Philips v Remington, this is not the case for shapes that are essentially functional. The same issue now lies before the ECJ once again in Lego v OHIM – MEGA Brands.

Key points

Key questions are who decides whether the shape is essentially functional, what the role, if any, the consumer has to play in this determination, and whether the existence of alternative shapes is relevant at all in this context.

Practical significance

A correct application of the functionality exclusion for trade marks is crucial to ensure the right balance between patent and trade mark rights. If trade mark protection were made available for essentially functional shapes, it would be possible for a former patentee to indefinitely extend the monopoly he formerly enjoyed under the now expired patent. The Philips v Remington doctrine of the ECJ is meant to avoid that a trade mark monopoly would curb competitors' freedom to use the functional shape of their choice to incorporate technical features into a product.

Journal Article.  4554 words. 

Subjects: Arbitration ; Intellectual Property Law

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