Europe just keeps generating stories. Their IP system is different, you see, though the march toward harmonization in a global market continues apace. Evidently, Lego — that incredible, creativity-inducing toy that made us ’60’s kids (and makes our own kids) such geniuses — had a “trademark” in Germany for “a 2×4 stud block design.” Now, crows Lego’s chief competitor, Mega Bloks, it doesn’t.
Could it ever? Since the decision by the U.S. Supreme Court in Traffix Devices , it has been clear that a trade dress claim cannot be made for “product configurations,” such as “a Lego,” but only for packaging. (Not always an obvious distinction.) This issue has been on the minds of more than a few global practitioners.
Anyway, it appears that Lego had found some way to protect — monopolize — its European business using trademark (whereas the appropriate protection would have been — and, for a time, was — patent). If the Mega Blok people are right, that’s history — as it is in Canada, too, since 2003, though they seem to have made some progress in China, which, however, is quite a Pyrrhic victory.
The good news for Lego: Their blocks still work a heck of a lot better than Mega Blok’s blocks. (Believe me, I know — my basement floor is coated with Legos and Duplos.) Sometimes you just have to compete on quality and value, Lego. It’s not so terrible.
UPDATE: Lego loses.