No form mark protection for LEGO

In Mega Bloks Inc v Lego System A/S (HG000095/Z07), the Zurich Commercial Court has cancelled the defendant's form mark registrations for LEGO brand bricks, finding that Swiss trademark law only protects forms that are distinctive.

The world-famous toy bricks were originally protected by a patent granted in the 1930s. When this patent expired, the manufacturer, Lego System, applied for Swiss form mark registrations for the bricks. These registrations were granted between 1993 and 1995.

Canadian company Mega Bloks manufactures similar bricks that are compatible with LEGO brand bricks. In 2000 Mega Bloks filed an action in the Swiss courts for Lego System's form mark registrations to be cancelled.

The Commercial Court in Zurich ruled in Mega Bloks' favour, finding that Swiss trademark law only protects forms that are distinctive. The court stated that because Lego System's bricks have functional elements, they are not distinctive. Thus, consumers are unlikely to distinguish its bricks from those of other toy companies, such as Mega Bloks. The court also noted a 1962 case in which the Swiss Federal Court held that the connection element of the LEGO bricks is not protectable under Swiss unfair competition law; thus, other companies are able to utilize this element. Accordingly, the court ruled that the form mark registrations be cancelled.

Lego System has announced that it plans to appeal this decision.

J David Meisser and Bettina Bochsler, Meisser & Partners, Klosters