Lego fails in bid to build a case for a trademark

The brick's three-dimensional four-by-two shape, one of the most instantly recognised toys in the world, was registered as an EU trademark in 1999. But rival Canadian maker Mega Brands, which markets Mega Bloks, successfully appealed to the EU's trademark office to cancel Lego's trademark.

The trademark experts decreed that a brick was a functional, technical shape which could not be trademarked by any one company.

Denmark-based Lego had argued that studs on top of the bricks made them highly distinctive and, therefore, eligible for trademark rights. It pointed to Coca-Cola's registration of the coke bottle and chocolate manufacturer Toblerone's trademark of the shape of its chocolate bars.

However, the Luxembourg-based European Union Court of Justice (ECJ) - the European Union's highest court - yesterday upheld a 2008 ruling by the General Court, which dismissed Lego's challenge.

"The Lego brick is not registrable as a community trade mark," the court said in a statement. "It is a sign consisting exclusively of the shape of goods necessary to obtain a technical result."

Lego, whose name originates from the Danish words for "play well", is Europe's biggest toy manufacturer and competes with Mattel and Hasbro.

Peter Kjaer, the head of Lego's intellectual property section, said. "It is naturally a matter of concern to us that use of the brick by others can dilute the trademark. But the worst aspect is that consumers will be misled."

Surveys found 40-60 per cent of consumers believed they were buying a Lego product when a brick was used as a symbol, when in fact they were buying another product, Kjaer said.

The ECJ suggested that, although Lego's position cannot be defended by trademarking the distinctive red brick, it could be examined as a case of unfair competition, which was outside its scope.