On July 16, 2009, the German Federal Court of Justice ruled that the LEGO brick, with its characteristic burling arrangement on the upper side, is not capable of protection as a three-dimensional trademark for gaming bricks (I ZB 53/07 and 55/07).
The LEGO brick had been registered as a three-dimensional trademark with the German Patent and Trademark Office in 1996. Now the court decided that the shape of the LEGO brick has to be kept free in the interest of the competitors because the main elements of the brick are necessary to achieve a technical effect. The court’s focus was on the brick’s upper side clamping burling only. The block-shaped form of the brick itself was to be regarded as the “generic form” of such brick toys, which cannot be protected as a trademark according to Sec. 3 para. 2 no. 1 of the German Trademark Act (MarkenG). The burling, however, together with the inner surface of the LEGO brick, only fulfills a clamping function. The brick lacks any other non-technical constitutive criteria. Pursuant to Sec. 3 para. 2 no. 2 of the German Trademark Act, signs consisting exclusively of a shape necessary to obtain a technical result are not capable of protection as a trademark.