2010-09-15 – by Attorney Dr. Stefan Lausegger (Column)
... are - if you believe Theodor Fontane - the most sincere of all compliments. What the 19th century writer judged so mildly is seen in a more differentiated way in the modern business world. The deliberate appropriation of someone else's intellectual property (the broadest definition of plagiarism) is prevented by a number of legal sources. The best known are patent and design protection law ("small patents"), but also trademark law. The latter provides protection for an unlimited period of time. This special protection law system provides amortization protection (by protecting inventions for a limited period of time), but not investment protection (since after the protection period has expired, anyone can copy a patented product). The aim is to create a balance between the inventor's interest in the commercial exploitation of his invention and that of the general public in generally accessible products that are state of the art.
In a ruling announced on September 14, 2010, the ECJ dealt with the following case: Lego Juris A/S, the manufacturer of the world-famous toy bricks, wanted to register a Community trademark after the former patents on these toy bricks expired in the mid-1990s. The trademark consisted - not surprisingly - of a red toy brick. Competitors who were already producing similar toy bricks with identical functionality opposed this. Trademark protection was not permitted, the "robust and flexible locking mechanism" of the bricks was a functional property that was now open to all economic operators to replicate. Since the characteristics of the trademark to be registered were de facto identical to this technical solution, but technical solutions (as patents) could only be protected for a limited period of time, the registration of a trademark that was valid indefinitely would not be permitted.
The ECJ followed this argument and decided that the toy brick was not protectable under trademark law. In principle, pure shapes could also be protected as trademarks (even colors can be protected under strict conditions!), but registering the three-dimensional sign applied for as a trademark would give Lego a monopoly on a technical solution, which would not be justifiable after the patent protection expires. This does not mean that "slavish imitation" (for example, the deliberate adoption of the entire product range, the reproduction of product lines or the detailed copying of individual models), which is always questionable under competition law, would generally be permissible. From a trademark law perspective, however, the mere adoption of the technical solution after the patent has expired cannot be prohibited - the interests of competitors and the general public (or in this case, especially 0-12 year olds) are more important.
Further information on the topic Intellectual property law.