Brand, power and bricks: For years, there has been a legal dispute about whether a special Lego brick enjoys trade mark protection or not. Are technical factors weighted more heavily than design factors? Is the classic Lego brick therefore not protected?
A commentary by Thomas Wagner
Almost everyone knows the colourful Lego bricks. The colourful building blocks – rectangular, angular, smooth, with studs on the top and hollow counterparts on the underside – are one of the best-known toys. Generations of children and adults have tried out their building skills with these handy blocks, giving shape to bold but also absurd fantasies. If we ignore the material and ecological question marks for the moment, the following applies: as a toy, Lego is the stuff that dreams are made of. Product lines for special target groups have long since expanded the brand’s range beyond the classic brick. There are sophisticated model building sets for buildings (the Eiffel Tower costs more than 600 euros), ships (the Titanic, of course), aeroplanes and racing cars, flowers, animals – not forgetting figures, castles and more from the Disney universe and the epic film series “Star Wars” as part of merchandising.
Jurisdiction and Design Policy
Lego is a billion-dollar company. In the 2022 financial year, the LEGO Group achieved a global turnover of around 64.6 billion Danish kroner, equivalent to around 8.7 billion euros. Legally, however, the successful Noppenstein and its subsidiaries have been a bone of contention for years. The seemingly endless legal back and forth could easily be left to specialised trademark lawyers if the changing court decisions did not conceal an issue that concerns design processes as such. Of course, the lawsuits and counterclaims are essentially about a lot of money and market power. However, they also touch on aspects of design that go far beyond the Lego brick and the current legal dispute and touch on general questions of design. For example, how narrowly or broadly the concept of design should be legally defined in contrast to purely technical solutions.
What is the Current Legal Dispute About?
As has been widely reported, Lego has just achieved another success in a multi-year legal dispute with a competitor before the General Court of the European Union (EGC) in Luxembourg. The EGC confirmed the protection of a special building block that Lego uses to make it more difficult to reproduce certain building sets. The Danish toy manufacturer had registered the flat plate with only one row of studs in the middle as a design in 2010; in contrast, the German competitor “Delta Sport Handelskontor” had applied to the EU trade mark office EUIPO to cancel the registration of the special Lego brick. The trade mark office initially granted the application in 2019. Lego appealed to the European General Court, which annulled the EUIPO’s decision in March 2021 and ordered new proceedings. In a second decision, the EUIPO then rejected the competitor’s application on the grounds that the special building block was subject to a specific exception that allows for the protection of modular systems. In 2022, the company Delta Sport again appealed to the General Court; this action has now been dismissed. The court based its decision on an exception to the protection of modular systems, in particular their novelty and individual character. The currently unsuccessful company can now appeal against the latest judgement before the European Court of Justice (ECJ).
Why is the Classic Lego Brick not Protected?
So far, so confusing – and somewhat Kafkaesque. Firstly, it is important to note: None of this is about the classic rectangular Lego brick. The ECJ had already rejected its protection as a registered trade mark in 2010 on the grounds that its shape resulted from its technical function and could therefore not be protected. As a result: Only a special stone that the judges consider indispensable for a modular system is currently protected. However, the classic Lego brick is not protected, even though it was the system concept that helped the colourful toy bricks to be successful in the 1950s. Just a reminder: in the design theory of the Bauhaus and the HfG Ulm, the system concept was already applied to architecture and design. The approach of systems thinking here is more than the technical development of things, it is in a broad sense a way of shaping the world. However, such historical and creative arguments and developments seem to count for little in legal terms. If universality and modularity are considered unrivalled in the classic Lego building blocks, why is there a double standard in legal terms and why is it only in the current legal dispute that a decision is made in favour of protecting modular systems?
Confusing Legal Criteria
“Novelty and uniqueness” are mentioned as criteria that must be met for the exception rule for modular systems to apply. So why does the same rule not apply to classical stones, which clearly form a system? They did not exist when they were invented; and they do not occur in nature either. In addition, the legal concept of design remains strangely pale as far as “taste” (an aesthetic, historical and social moment) is concerned, emphasising the “pattern” or “model” that serves to shape the external form.
More is Designed Than the Outer Form
To pick out just one aspect, are we operating here with a concept of design that no longer seems up-to-date? In short, the more comprehensively design processes affect the entire production process, the further design moves away from styling. As a non-lawyer, one gets the impression that legislation and jurisdiction still have a lot of catching up to do with regard to a historically expanded concept of design. Often referring to technical criteria is understandable, but no longer appropriate to the significance of today’s design processes. It should not be overlooked that design decisions cannot be separated from technical aspects or from aesthetic, ethical, ecological, social, brand-strategic and socio-political ones. It is time to emphasise all of this more strongly in the legal system. So that it is not just the old sigh that you are in God’s hands in court and on the high seas.
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