CLASS 46
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MONDAY, 20 JULY 2009
BGH: no trade mark protection for the Lego toy bricks
Tags: Bundesgerichtshof, Bundespatentgericht, German trade marks,
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BGH: no trade mark protection for the Lego toy bricks
Third parties had applied for a cancellation of the trade mark registration arguing that the Lego brick should never have been registered as a (three dimensional) trade mark in the first place.
The BGH appears to have agreed with this view. According to the BGH's press release the Lego brick trade mark registrations not only fell foul of Article 3(2) No.2 German Trade Mark Act (purely technical function of the "pimples") but also of Art 3(2) No.1 German trade mark Act since the "square shape" of the bricks was to be regarded as the "generic form" of such brick toys. Hence the BGH held that the bricks should not be protected as three dimensional trade marks and trade mark protection for the mentioned characteristics of toy bricks ("pimples", square shape) had to be "kept free" in the interest of competitors on the market.
The BGH appears to have agreed with this view. According to the BGH's press release the Lego brick trade mark registrations not only fell foul of Article 3(2) No.2 German Trade Mark Act (purely technical function of the "pimples") but also of Art 3(2) No.1 German trade mark Act since the "square shape" of the bricks was to be regarded as the "generic form" of such brick toys. Hence the BGH held that the bricks should not be protected as three dimensional trade marks and trade mark protection for the mentioned characteristics of toy bricks ("pimples", square shape) had to be "kept free" in the interest of competitors on the market.
Case references: I ZB 53/07 and 55/07 of 16 July 2009. The full text of the decisions is not yet available.
Lego bear picture taken from www.brickartist.com
Posted by: Birgit Clark @ 13.32Tags: Bundesgerichtshof, Bundespatentgericht, German trade marks,
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