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LEGO brick – trademark cancelled

The German Federal Court of Justice (BGH) has confirmed the decision of the Federal Patent Court in regards to the cancellation of the registration of the LEGO brick as a trademark.

The LEGO brick had been registered as a three dimensional mark with the German Patent and Trademark Office in 1996. The cancellation is based on an infringement of Sec. 3 subsection 2 no. 2 of the German Trademark Act (MarkenG) pursuant to which signs consisting exclusively of a shape necessary to obtain a technical result are not capable of protection as a trade mark.

The court considered the brick’s cubic shape as irrelevant in regards to trademark registration. Pursuant to Sec. 3 subsec. 2 no. 1 German Trademark Act signs consisting exclusively of a shape resulting from the nature of the goods do not qualify as a trademark. Hence, to decide whether the LEGO’s brick could be trademarked, the focus was on the brick’s upperside burlings only.

However, the court argued that the function of these burlings is of technical nature only (“connectors”) which pursuant to Sec. 3 subsection 2 no. 2 of the German Trademark Act prevents a mark from being protected.

The underlying principle of Sec. 3 subsec. 2 German Trademark Act is the idea that – in the interest of free competition – certain shapes can not be protected as a trademark.

So far, in this matter only the press release has been published.

(Federal Court of Justice -16. Jul. 2009 – I ZB 53/07 and I ZB 55/07)

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