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When I was a kid, I had many different toys, including a dollhouse, shelves full of board games, and tons of plastic blocks with small studs on top that would connect with each other. I would always call these blocks my “Legos,” but now I can’t remember if they were actually produced by the Danish company Lego, or if I was inadvertently violating their intellectual property rights. I wish I had a toy time machine so I could go back and teach my six-year-old self about trademarks.

Generic names for products are not eligible to be registered as trademarks. For example, if a company was able to register the term “bookcase” as a trademark, all of the other companies producing bookcases would have a difficult time describing their products. “Furniture that has many shelves and is used for storing books” just doesn’t roll off the tongue as easily. In some cases, a company markets a unique product, but other manufacturers later make the same thing, and the name the first company used has become the generic term. Examples of this include escalator and cellophane.

To keep its name as a trademark, Lego must continue to make efforts to not let the name become a generic word for plastic blocks with studs on top. The company has undertaken advertising campaigns to make this point, and it uses marketing campaigns to educate consumers, including a page on their website about “Fair Play.” Although Lego seems to be succeeding in this area, it recently lost another intellectual property battle.

The European Union recently ruled that the shape of the Lego brick can not be registered as a trademark. The company registered their 2×4 red brick as a trademark in the EU in 1999, and the registration was challenged by the company that makes Mega Bloks, a rival brick toy.

A trademark is used to mark a product from a unique source, and it allows a company to distinguish its product in the market. A wide variety of elements can serve as trademarks, including words, symbols, logos, colors, and shapes. In the case of colors and shapes, trademark rights are not automatically conferred. First, the registrant must prove secondary meaning, showing that the relevant public has come to associate the goods containing the mark with their unique source. In addition, the functionality doctrine requires that a trademark can not be registered for a feature that serves as functional part of the item. Another type of intellectual property protection, the patent, exists to protect innovations that have a functional purpose. One of the differences between trademarks and patents is that a trademark can be conferred indefinitely, as long as a company continues to use the mark in commerce, while a patent can only be owned for a limited time, allowing the public the right to use the functional invention after the monopoly period.

Mega Bloks challenged Lego’s trademark by claiming that the shape of the three-dimensional brick, which is two studs wide and four studs long, is a functional shape. They claimed that the shape is “necessary to obtain a technical result.” Lego responded by saying that their design contains other unique characteristics, including the size and design of the studs on top of the brick. Lego claimed that their competitors do not need to use the same exact shape as the Lego brick to create a toy block that performs similar functions. The court ruled in Mega Bloks’ favor, finding that if Lego was allowed to trademark the shape of its brick, it would impede other companies from producing a similar type of toy block.

I agree with the EU court that Lego can not have a trademark on the shape of the brick, because then other manufacturers would not be allowed to make this kind of toy. I remember how much fun it was playing with this type of toy when I was a kid, and I think it should be allowed to be produced freely by any company that wishes to enter the market. As for what to call these toys, I promise to try not to use Lego as a generic term, but it’s hard when people look at you funny when you talk about playing with your “plastic bricks with studs on top.”

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