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In lugnet.off-topic.clone-brands, Dave Schuler wrote:
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That’s an interesting argument--do you have a citation? I ask because I
believe that the patent on the minifig design has expired, and previous
arguments by LEGO re: the “trademark” status of their pieces have failed.
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It’s a little misleading to say their arguments have ‘failed’ - the same
arguments that got shot down in Mega Bloks’ Canadian home court are still doing
just fine in the courts of northern Europe. I think the big loss in Germany is
going to be a sign of things to come however.
This is at least how it’s been explained to me: the basis for overturning the
trademark status of the basic brick was that the brick’s design was ruled to be
purely necessary to its function (apart from the signature element of the logo
on the studs), and you can’t make a legitimately-competing product without
duplicating that function. So as far as that goes, I think trying to defend the
trademark on the brick is probably just staving off the inevitable, at least in
any country where the laws are set up to support market competition.
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The majority of rulings against LEGO have found that such designs--being
functional in nature--are subject to patent law rather than trademark.
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On the brick itself, that’s right (although still not yet in all countries).
But the minifig’s a different story; there are any number of design solutions to
making a human figure in a construction-brick world, so the “functional”
argument doesn’t apply in the same way. There are functional aspects to the
minifig which can’t receive trademark protections - holes in the back of the
legs allowing it to sit on studs, hands that grip a handle of x dimension - but
the signature aspects without a specific functional basis can be protected:
the shape of the elbow, the way the wrist connects to the hand, the rounded
cylinder of the head.
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Beyond that, I’m not sure how trademark status would even apply, unless
we’re supposing that any minifig-style design belongs to LEGO. That
is, since LEGO has long since moved beyond the “smiley-face” minifig
design, it no longer seems reasonable for them to claim it as the
figurehead image of the company. Further, does the trademark apply to the
smiley-face or to the minifig as a whole?
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Wikipedia’s got a decent primer on some of the ins and outs of shape trademarks
- I know citing a wiki isn’t exactly academically rigorous, but I don’t see any
reason to get all o.t.d. about it:
http://en.wikipedia.org/wiki/Trademark
The shape trademark, as far as I understand, isn’t related to the graphics
printed on it. (I don’t think the Lego smiley graphic is trademarked at all,
based on how freely they make changes to it, although I can’t say so
conclusively.)
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And anyway these Cobi/Best-Lock minifigs might not
even violate trademark issues because they are similar to but not
indistinguishable from LEGO minifigs.
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From a legal standpoint, the issue isn’t whether they can be distinguished, it’s
the degree to which the similarity of design causes damaging brand confusion in
the mind of the consumer, and whether the design choices that lead to that
confusion can be justified by some aspect of fair use.
In Mega Bloks’ victory in Canada, there was a “clear finding” that the
duplicated brick design caused genuine and damaging brand confusion among
consumers, but it was judged irrelevant in the face of the functional argument.
(I know you’ll want a citation on that, but my quick googling isn’t pulling up
anything stronger than the Lego press releases, so take it with a grain of salt.
I’ve heard crazy numbers bandied around from that case - that over forty percent
of Canadian consumers buying Mega Bloks either believed that they were actually
buying Lego products or that Mega Bloks was a division of Lego. That’s just
remembered hearsay though, if someone can locate the official finding-of-fact
documents I’ve been wanting to get a look at them for a long time.)
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I’ve seen “candy cigarettes” with labels designed to look very much like
Marlboro or Camel, but still sufficiently different to avoid issues of
trademark violation. The same might be true here.
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In cases like that it’s not that the logos were sufficiently different, it’s
that candy cigarettes don’t compete directly with real cigarettes. If another
cigarette company had tried to use those logos you can bet there’d’ve been
serious litigation.
And that’s not to say there wasn’t - I don’t think candy cigarettes are a
high-investment industry, I’d bet you could make a quick profit in the interval
between putting the product on the market and having to stop production when the
injunction hits. People who want to make money off of training kids to smoke
don’t strike me as the types who probably have the strongest business ethics.
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Let’s not throw around the word “counterfeit” prematurely. If these
Cobi/Best-Lock minifigs are indeed being legally produced and distributed
(and we must presume innocence, after all), then it’s libelous to call them
counterfeit.
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“Made in imitation so as to be passed off fraudulently or deceptively as
genuine.” As a designer I’m used to using the word “counterfeit” in its more
precise sense. Counterfeiting isn’t necessarily a criminal act, just a grossly
unethical one.
Best-Lock had a fine design that was already vaguely similar to the Lego figure,
but they’ve just changed it to be much, much less distinguishable. Why? Those
changes have no functional benefit over the previous design. Is there even one
possible advantage to the redesigns, other than to make the figures more
easily confused with a Lego product? Regardless of the ultimate legality of
their actions, what they’re doing is counterfeiting.
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There you go again with accusations--yikes! If this goes to court and
Cobi/Best-Lock is found to be acting legally, will you post here to
retract your accusations of counterfeiting and fakery? Yowza!
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I don’t think that being found innocent of criminality is going to change my
personal beliefs about their motivations for these design decisions.
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That reasoning breaks down a bit when we consider that Cobi has been
producing these sets and minifigs for several years, and other brands have
likewise been producing similar minifigs.
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Sure, but have they been producing them in this market? The systems of law are
different in every country. Releasing Cobi bricks in Poland is a whole
different legal animal than releasing them in the Americas or other markets.
I’ll qualify everything here by saying I’m not a lawyer, and I’m not privy to
the non-public legal details of these cases. I’m just some guy on the internet,
and I think everybody knows how seriously to take the wild diatribes of some guy
on the internet. What I am, though, is a professional designer, so I do have
some insights and opinions about things like this that other people might not,
and I try to share those to the best of my understanding. And in the case of
Cobi my personal opinions are pretty strong.
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Message has 1 Reply:
 | | Re: Cobi/Best-Lock
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| (...) There may be another variable at play in those northern European cases; as far as I'm aware, LEGO maintains a de facto stranglehold on many of the markets there, so competitor brands are denied entry altogether. It seems that LEGO has secured (...) (18 years ago, 11-Jan-07, to lugnet.off-topic.clone-brands, FTX)
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Message is in Reply To:
| | Re: Cobi/Best-Lock
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| (...) That's an interesting argument--do you have a citation? I ask because I believe that the patent on the minifig design has expired, and previous arguments by LEGO re: the "trademark" status of their pieces have failed. The majority of rulings (...) (18 years ago, 10-Jan-07, to lugnet.off-topic.clone-brands, FTX)
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