Overview

The answer is they were both the subject of recent decisions which shed further light on the ability to register three-dimensional shapes as trademarks.

On the face of it, a three-dimensional shape may be registered as a trade mark, provided it meets the usual criteria - distinctive, non-descriptive and capable of distinguishing goods of one business from another.

However, there is one important additional stipulation that must be satisfied to obtain trade mark protection over a three dimensional: namely, it must not consist exclusively of a shape which is necessary to obtain a technical function.

Recently, Lego put this requirement to the test when it attempted to register its iconic Lego brick as a Community Trade Mark. This prompted an opposition from MEGA Brands Inc (a toy manufacturer producing similar toy building blocks to Lego) and sparked a series of hearings and appeals.

Although we still await the final decision of the European Court of Justice (ECJ), on 26 January 2010 the Advocate General issued its opinion on the matter, which the ECJ may well adopt.

Click “view briefing” to read more.