The General Court of the European Union has recently decided that LEGO bricks are eligible for protection by community design. The decision overturns a decision by the Board of Appeal of the European Union Intellectual Property Office (EUIPO) which in 2019 nullified LEGO’s design.

The EUIPO was found to have erroneously declared invalid the design by failing to examine the relevance of the application of the exception relied on by Lego and failing to take into consideration all the features of appearance of the brick.

According to Article 8(2) of the Community Design Regulations (CDR), a Community design does not subsist in features of appearance of a product which must necessarily be reproduced in their exact form and dimensions in order to permit the product in which the design is incorporated or to which it is applied to be mechanically connected to or placed in, around or against another product so that either product may perform its function. But the General Court decided that the Lego brick was an exception to the rule due to its modular nature: “the mechanical fittings of modular products may constitute an important element of the innovative characteristics of modular products and present a major marketing asset, and therefore should be eligible for protection”. The General Court stated that the EUIPO has not examined the relevance of the application of the exception.

According to Article 8(1) of the Community Design Regulations (CDR), a Community design shall not subsist in features of appearance of a product which are solely dictated by its technical function. The General Court’s position is that if at least one of the features of appearance of the product concerned by a contested design is not solely dictated by the technical function of that product, the design in question cannot be declared invalid. The design in question details a “smooth surface on either side of the row of four studs on the upper face”. The General Court pointed out that the feature was not identified by the EUIPO, but constituted a feature of appearance of the product.

The General Court's decision can be appealed to the EU Court of Justice.