The Decade-Long Mega Bloks-Lego Litigation May Finally be Over

Mega Bloks is a Montreal-based toy company that makes building blocks, as does its famous counterpart, the Danish company Lego AS (Lego). The decade-long litigation in which the two rivals engaged may have finally come to an end, with the European Court of Justice (ECJ) ruling this month that Lego could not use trade-marks to extend its monopoly over its blocks. Specifically, held the ECJ, the interlocking, raised bumps on the surface of the blocks, being a functional feature, could not be the subject of a trade-mark. A similar result was reached by the Supreme Court of Canada in 2005 (Canadian patent protection having long ago expired). In 2002 Lego first alleged that Mega Bloks had copied its unregistered “Lego Indicia” of the raised pattern appearing on the top of the blocks, and also framed a claim within the tort of passing off and under section 7 (b) of the Canadian Trade-marks Act. In dismissing Lego’s appeal, the Supreme Court of Canada applied the doctrine of functionality, holding that the Lego Indicia were functional in nature and were therefore beyond the limits of trade-mark law in Canada. No claim of passing-off could be asserted since the product had elements that had passed into the public realm on expiry of the patents. For a media report of the recent ECJ ruling, see: http://tinyurl.com/2cw2x2c For an earlier report in E-TIPS®, visit: “Shape of Lego® Blocks Not Protected by Trade-mark Law in Canada”, a mini-article commenting on the Supreme Court of Canada decision, Kirkbi AG et al v Ritvik Holdings Inc et al [2005] 3 SCR 302 Summary by: Cindy Vergara