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Lego Nederland et alia v. Mega Brands Inc. et alia

2009 November 23
by Hein Kernkamp

Court: Netherlands Supreme Court

Date: November 20, 2009

LJN Number: BJ6999

Case: Lego is the producer of the well known Lego and Duplo “studs and tubes” interlocking brick system. All relevant Lego patents have expired. Mega Brands markets and sells similar construction bricks in Germany and Belgium and intended to enter the Dutch market. Before the Court Lego upheld that Mega Brick’s Micro and Mini building systems should be qualified as a slavish imitation of the Lego and Duplo bricks. The Court held that the Lego bricks and the Mega bricks are indeed practically identical as to their form, size, construction and application and that the product of Mega Brands should be regarded as an unlawful slavish imitation, that was likely to confuse the public. Mega Bloks could and should have made other choices as to the size of the bricks without affecting the soundness and usability of Micro and Mini as building bricks.

Mega Bricks appealed and the Court of Appeal held that the imitation was lawful as there is a strong wish among the potential buyers of the bricks to buy bricks that fit and have the same looks as the Lego bricks they have at home. The need for compatibility and exchangeability with an existing and widespread system, dictated the design. Under these circumstances, an imitation will be justified by the realistic need among consumers for compatibility. The Court of Appeal quashed the ruling of the Court and held that the marketing and sale Mega Brands bricks cannot be qualified as a slavish imitation of the basic elements of Lego and Duplo. Lego appealed to the Netherlands Supreme Court.

Held: The Netherlands Supreme Court confirmed the decision of the Court of Appeal. A necessity for imitation exists in this case. The imitation of the Lego brick is justified by the consumers’ need for compatibility and exchangeability. Mega Brands may bring the bricks on the Dutch market. It has a duty to care that avoid unnecassary confusion of the public, but under the circumstances the criteria are met.

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