Country: CH
Tribunal: Gerichtshof (Supreme Court)
Date: 02/07/2003
Case No.: 4 C. 121/2003 Lego Formmarke-II/Lego Three Dimensional Mark II
Parties: Ritvik Holdings Inc (t/a Mega Bloks Inc) v Lego Systems A/S
Citation(s): IIC Vol 35 8/2004 953, 2004 GRUR 262
Author: David Musker, R G C Jenkins & Co

This was a cancellation action relating to Lego's trade marks 411469, 433265, 433266, 433267 and 433268. Referring to the travaux preparatoire in Switzerland, the Court held that the functionality exclusion in Swiss law was intended to exclude designs where the same function could not be achieved by using other reasonable (in the sense of being inter alia practical and not overly expensive) designs. Here, this was not shown to be the case. However, even if not functional, the blocks were not original and hence not distinctive, and although the Swiss public was familiar with them, this did not necessarily result in a secondary, trade mark, meaning. The case was remitted for the court below to examine whether they had acuired a secondary meaning.
NOTE: compare with the opposite EU findings on functionality in Philips v Remington.