Mega Brands may sell imitations of Lego bricks, says Supreme Court

In Lego Nederland BV v Mega Brands Inc (Case LJN BJ6999, November 20 2009), the Dutch Supreme Court has confirmed that Mega Brands Inc may sell its Micro and Mini toy building bricks in the Netherlands.

The Dutch Supreme Court dismissed Lego Nederland BV's appeal against a June 12 2007 decision of the Court of Appeal of Den Bosch in which the latter had found that there was a need among the relevant public for a system that is compatible and exchangeable with that of Lego (for further details please see "Mega Bloks wins latest battle against Lego").

The Supreme Court confirmed that the decision of the Court of Appeal complied with earlier judgments in which it was held that the need for standardization may justify the production of a slavish imitation. These judgments, which dated from 1970 and 1998, concerned the copying of clothes hangers and scaffolding material.

In the present case, the Supreme Court found that the consumers’ need for standardization justified the imitation of the Lego brick. It was sufficient for Mega Brands to use another colour and display its brand on the bricks to avoid confusion among consumers. The Court of Appeal was correct in finding that there was no need to request that Mega Brands take other actions to avoid confusion.

All relevant patents protecting the Lego bricks have expired.

Paul Steinhauser, SteinhauserRijsdijk Advocaten, Amsterdam

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