tag:blogger.com,1999:blog-5574479.post113226821611947810..comments2024-03-28T16:45:51.051+00:00Comments on The IPKat: LEGO LOSES IN CANADAVerónica Rodríguez Arguijohttp://www.blogger.com/profile/05763207846940036921noreply@blogger.comBlogger1125tag:blogger.com,1999:blog-5574479.post-1132270208589873062005-11-17T23:30:00.000+00:002005-11-17T23:30:00.000+00:00Text of the decision is available at http://www.le...Text of the decision is available at <BR/><BR/>http://www.lexum.umontreal.ca/csc-scc/en/rec/html/2005scc065.wpd.html <BR/>IPkat commented: "The existence of the other right doesn’t take away the justification for giving the trade mark right."<BR/><BR/>As I read it the Court's decision is based on the premise that there never was any justification for giving the trade mark right. <BR/><BR/>Lego was claiming a trade mark on the functional features of the object, and not as a source indicator. As such the trade mark claimed was invalid (which is why it was an unregistered trade mark, having been previously rejected when Lego applied to register the mark). <BR/><BR/>The long expired patent was for the same functional aspects as what was claimed to compose the unregistered trade mark. As such, the existence of the patent was factual evidence that what was being claimed was an essential 'utility' aspect, and not a source indica aspect of the product. <BR/><BR/>If a TM could be claimed on the functional aspect, then no other competitors could ever enter the market. This was worse from a policy perspective than the minor risk of consumer confusion while consumers sorted out the source of new market entrants. (Note also that on the facts the trial judge found there had been no confusion, given the way the products were distinctly marketed, named and packaged).Anonymousnoreply@blogger.com