“The decision is a bit of a surprise,” said Nikolas Gregor, attorney at CMS who was not involved in the proceedings, with a view to a CJEU ruling from 2010. This states that Lego bricks cannot be protected as a trademark. This case is about design and not brand protection, “but many expected that the European Court would deny protection to the Lego brick for the same reason,” said the lawyer. In the communication on the judgment, the EU-G also accuses the EUIPO of errors of law.
It had failed to examine an exemption, which states, among other things, that the connecting elements of the building blocks “form an important element of the innovative characteristics of combination parts and represent an essential factor for marketing”. In addition, not all appearance features have been checked. Specifically, it is about two sides of the building block that have a smooth surface. “The European Office for Intellectual Property must now decide again – and then possibly again the European courts,” predicts Gregor.
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Lego wins court Lego brick worthy protection