Legos’ aggressive attempt to use a 1999 trademark of a 3D photographic representation of the “studs and tubes” interlocking system on their toy building blocks as a long-expired patent extender looks to be in its last stages.
In 2006 the European Trademark Agency ruled the two rows of studs served a utilitarian function, not a marking function. In 2008 the European Court of First Instance upheld that decision, and finally the European Court of Justice (ECJ), the highest court governing the EU’s 27 member countries confirmed the Lego block can’t be registered as a trademark.
MEGA Brands, which produces a toy block of the same design, triggered the disputes with their challenges to the use of the 1999 trademark to extend a patent. (Though IPBlog was tempted to display pictures of each company’s toys for reportorial purposes, the nature of this dispute forced a reevaluation.)
The U.S. is the last frontier. According to a press release issued by MEGA Brands, U.S. Customs and Border Protection has advised the company that it intends to restrict the importation of certain of its products which allegedly infringe Legos’ trademark. MEGA Brands has sued, seeking a temporary restraining order and preliminary injunction in order to ensure that its U.S. imports are not affected by Lego’s 1999 mark.
When the skirmishes end, and MEGA Brands is able to sell its similar toys unencumbered from stays, fits, starts and legal and marketing expenses resulting from Legos’ trademark actions, it will be interesting to see if this IP strategy was worth it to Legos. Financial analysts can look at delays to introduction of MEGA Brands’ competitive products worldwide and calculate what the presumed loss in revenue and market share meant over time.