According to trademark law, brands are able to trademark 3D objects, as Coca-Cola did with the shape of its bottle. However, there is an exception where the object itself serves an exclusive technical function, to ensure companies cannot gain a monopoly over that function.
The court ruled that the stacking function of the Danish toy giant's brick meant it was a functional shape, and it would therefore not be possible to grant it protection.
Lego first submitted an application for the registration of the 2x4 brick, which was successful as from 1999 in the EU. However, the ruling was overthrown in 2004, following a challenge by Canadian toy manufacturer Mega Brands.
Lego argued its case by claiming it had produced 25 to 30 different designs of prototypes and moulds, which could be built onto its brick. It said this demonstrated that bricks with the same function could have a different appearance, at no additional manufacturing cost.
According to Peter Kjær, head of the Lego Group’s intellectual property section, its desire to register the eight-studded brick is to help consumers distinguish its products from other toy brands.
He said: "The worst aspect is that consumers will be misled. Analyses show that 40% to 60% of shoppers believe they are buying a Lego product, when in fact they are purchasing a different product."
Shireen Peermohamed, partner at intellectual property firm Harbottle & Lewis, said the case could still have life in it.
He said: "The court left open the possibility that Lego could take action under unfair competition laws to object to copies of its bricks."
"Lego's fight may thus not be over completely."
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