Lego fails to build a convincing case at the ECJ

 On September 14, the European Court of Justice rejected an appeal by Danish toy company Lego against a ruling by the Court of First Instance in 2008. Lego had previously sought to register its iconic 3-D studded brick as a trade mark. The 3-D studded brick featured prominently in Santander’s UK rebranding television campaign which began earlier this year. Registration had been granted to Lego by the European trade mark office in 1999 but it was subsequently overturned in 2004 following an appeal by Canadian rival Mega Brands. The ECJ ruled that the iconic 3-D studded brick cannot be registered as a trade mark as the "shape merely incorporates a technical solution developed by the manufacturer of the product". This would in effect grant an exclusive right to a technical solution which cannot be "freely used by all economic operators". The ECJ has restricted the prohibition to "signs which consist exclusively of the shape of goods which is necessary to obtain a technical result". The ECJ has stated that Lego may be able to protect the iconic 2x4 studded brick by using unfair competition laws to object to copies. Advertisers should also be warned that as with most iconic toy manufacturers, Lego fiercely protects its copyright in the design of its product and therefore clearance for use in advertising is advised.

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