Now in its twelfth year, Class 46 is dedicated to European trade mark law and practice. This weblog is written by a team of enthusiasts who want to spread the word and share their thoughts with others.
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MONDAY, 20 JULY 2009
BGH: no trade mark protection for the Lego toy bricks
The German Federal Supreme Court (BGH) has last Thursday, 16 July 2009, added another chapter to the Lego brick saga by deciding that the trade mark registration of a Lego brick as three dimensional trade mark should be cancelled, upholding earlier decisions by the German Federal Patent Court (case references 26 W (pat) 80/05 and 26 W (pat) 82/05 of May 2007).
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.
Case references: I ZB 53/07 and 55/07 of 16 July 2009. The full text of the decisions is not yet available.
Posted by: Birgit Clark @ 13.32
Bundesgerichtshof, Bundespatentgericht, German trade marks,
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