Lego registered its three-dimensional 2x4 shape as a Community Registered Trade Mark in 1999. The Danish toy maker's classic red brick became a global phenomenon after its launch in 1958. Yet, just last week, European judges refused to renew the trade mark which protected the shape of the Lego brick, after a rival toy maker, Mega Brands, successfully appealed to the EU trade mark office.

Mega Brands, who manufacture a similar toy, called Mega Bloks, argued that a brick was a functional, technical shape which could not be trade marked by any one company. The European judges agreed and rejected Lego's application to have its trade mark renewed.

Lego argued that its brick contained characteristics which set it apart from the regular shape used in industry, such as the design and size of the studs on top of the bricks. Lego's solicitors also challenged the idea that shapes should be refused trade mark protection. Lego also submitted evidence in the form of surveys which showed that most consumers identified the plastic red brick with studs on top as its brand, and that consumer perception had to be taken into consideration.

However, the OHIM ruled in favour of Mega Brands and stated that Lego's two rows of studs on top of its bricks performed a utilitarian function and were not for identification purposes in a trade mark sense. They also stated the trade mark created a monopoly in favour of Lego on what was essentially a functional shape necessary to obtain a technical result. The OHIM also rules that consumer perception was not relevant to an analysis of the functionality of the design. EU trade mark law precludes registration of any shape that is sufficient to obtain the intended technical result even if that result can be achieved by other shapes.

Lego intends to appeal the decision.