The Commercial Court of Zurich granted an application by the Canadian company, Mega Bloks Inc., against the Danish toy manufacturer Lego, declaring void five three-dimensional trademark registrations which Lego had registered in Switzerland for brick designs of various configurations. The court observed that the rectangular shape of a brick was obvious and did not deviate from the expected and the commonplace shape for such goods. Hence, the impugned marks lacked the required distinctive shape for trademark protection pursuant to standards set out in earlier decisions by the Swiss Federal Supreme Court.
Additionally, the Zurich Court observed that the Supreme Court had previously decided, before the 1992 legislative amendment that introduced the concept of three-dimensional trademark protection to Swiss law, that copying the shape and measurements of the Lego brick did not per se constitute unfair competition. Hence, the registration by Lego of the product shape marks could only have as its purpose the prohibition of competitive conduct that had been allowed for almost 50 years. As such, the registrations were also held to be an abuse of trademark rights. This decision of the Swiss court is in line with parallel U.S., Canadian and European court decisions on the subject matter. However, Lego has filed an appeal to the Supreme Court from the Zurich Court's decision.
Zurich, February 25, 2003
Dr. Markus R. Frick, LL.M.
Walder Wyss & Partners, Switzerland (Walder Wyss & Partners represented Mega Bloks Inc. in the Swiss litigation)
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