The LEGO BRICK in the Borderzone Between forms of Protection

Abstract

This thesis is a case study on the attempts of the LEGO Group to achieve legal protection of the Basic LEGO Brick, i.e. the LEGO Group’s standard toy building brick with eight bosses on the upper surface. The objective is to illustrate the legal reasoning of different courts in a global perspective and find out how a company such as LEGO uses the courts and intellectual property rights for the purpose of attaining a certain desirable position on the market.

The Basic LEGO Brick has a fascinating legal record. Apparently, it is possible to obtain exclusive rights for the shape of the brick under several intellectual property law regimes. The brick has been considered to be able to obtain exclusive rights as it provides a technical solution for a technical problem and simultaneously as it has a certain design. Consequently, the Basic LEGO Brick is in the borderzone between various forms of protection and this area of law can be somewhat grey and complex.

The standard bricks and the basic building sets have been subject matter for world wide patents. However, in order to maintain market dominance, patents are rarely sufficient. A patent is limited in time and only protects the technical idea. Once the patent expires the market is open for competition. Since the LEGO Group’s major patent on the Basic LEGO Brick expired, LEGO has persistently tried to block its competitors by claiming that other forms of protection are available for the shape of the bricks. The LEGO Group has argued before courts and decision-making bodies that the features which were claimed in patents to solve a technical problem should be protected by trademark law, copyright law and unfair competition law.

In the thesis, the reader will be able to see the on-going dialogue between the LEGO Group and the courts and other decision-making bodies. The laws of different countries have different approaches to the functionality doctrine under trademark law and unfair competition law respectively. Even though there are great disparities between the law regimes in some cases, it is possible to discover similarities as well as differences in how the courts have reasoned and which interests the courts have found to weigh the most. Mostly, the core of the potentiality of protection is whether the shape of the LEGO Brick is too functional.

Accordingly, we will follow the LEGO Group in its strategic thinking as well as the arguments of those courts that have considered the LEGO Bricks. From the actions and argumentation it is possible to identify the management strategy the LEGO Group has adopted with a view to strengthen its competitive position and maintain market dominance.

In the thesis the LEGO Brick will also serve as a subject matter for discussion about possible implications on overlapping intellectual property rights. As the LEGO Group has succeeded in protecting it with different intellectual property rights the LEGO Brick is the ideal subject matter for such a discussion.