Lego Block Design Not Protected by Trade-mark in Canada

In a recent decision, (Kirkbi AG and Lego Canada Inc. v. Ritvik Holdings Inc./Gestions Ritvik Inc. (now operating as Mega Bloks Inc.), the Federal Court of Appeal held that functional features of a toy design are properly the subject of patent law and not subject to trade-mark protection. The Canadian company Mega Bloks made a building brick very similar to those produced and distributed for decades by the Danish manufacturer, Lego. In an attempt to halt the sale of the Mega Bloks bricks, Lego brought a passing off action on the basis that the Mega Bloks bricks infringed the (unregistered) trade-mark rights of Lego in the _distinguishing guise_ of the bricks _ particularly the protruding _knobs_ by which the bricks interlocked. The court below (Federal Court, Trial Division) dismissed the action, ruling that due to the doctrine of functionality, the look of the Lego bricks could not be the subject of a valid trade-mark. In dismissing Lego_s appeal, the Federal Court of Appeal commented that Lego, through the guise of asserting trade-mark rights, was attempting to extend the monopoly represented by the patent rights it once held. Lego_s last patent on the building bricks expired in 1988. The importance of the case lies in its re-assertion that the protection of functional devices such as the interlock feature _ without which the bricks would not function _ is the proper domain of patent law and not trade-mark law. For the Federal Court of Appeal decision, visit: http://decisions.fct-cf.gc.ca/fct/2003/2003fca297.html. For the Federal Court Trial Division decision, visit: http://decisions.fct-cf.gc.ca/fct/2002/2002fct585.html. Summary by: Sue Diaz