1+1 may be 2 but sometimes looks like 1 – The General Court’s math for LEGO

[Marcel Pemsel]

1+1 may be 2 but sometimes looks like 1 – The General Court’s math for LEGO

Marcel Pemsel Wednesday, February 04, 2026 - Art. 8(3) EUDR, designs, General Court, Lego, Marcel Pemsel, T-628/24

LEGO bricks are designed to fit together seamlessly. Whether the same can be said of EU design case law on modular products was once again before the General Court in Lego v EUIPO (T-628/24).

Background

LEGO owns the following registered EU design (“REUD”) for “building blocks from a toy building set”:

Guangdong Qman Toys Industry Co. Ltd filed an application for invalidity of LEGO’s design under Article 25(1)(b) EU Design Regulation (“EUDR”), contending that it lacked individual character because of the following (undisputedly) earlier design: 

The Invalidity Division of the European Union Intellectual Property Office (“EUIPO”) declared the contested design invalid. The EUIPO’s Board of Appeal (“BoA”) dismissed LEGO’s appeal. LEGO filed an action with the General Court.

The General Court's Decision

The General Court dismissed the appeal.

It recalled consistent case law, according to which the assessment whether two designs have a different overall impression under Art. 6 EUDR must be carried out in four stages:

1. Determination of the sector of the designs in question;
2. Determination of the informed user of the products, the degree of awareness of the prior art and the level of attention to the similarities and the differences of the designs;
3. Determination of the designer’s degree of freedom in developing the design;
4. Making a direct comparison of the overall impressions produced on the informed user.

1. Relevant sector

The relevant sector was deemed that of building blocks from a toy building set, which are part of a modular system.

2. Informed user

The informed user of the building blocks from a toy building set was considered to be whoever habitually purchases such items, puts them to their intended use, possesses a certain degree of knowledge with regard to the features that those designs normally include and shows a relatively high level of attention.

3. Degree of freedom

The judges found the degree of freedom of the designer to be limited by the need for the blocks to be interconnectable. This interoperability, however, does not limit the general visible appearance of the blocks. The designer has a wide choice in terms of the shape and contours of the blocks, their size and components, the number and position of those features as well as the colour or decoration. Based on these broad design options, the Court confirmed that the informed user will not pay particular attention to the difference in shape (square or rectangular) of the toy building blocks. This reinforces the conclusion that designs which do not have significant differences produce the same overall impression on the informed user.

4. Comparison

The Court referred to settled case law, according to which the individual character of a design results from an overall impression of difference or lack of “déjà vu” between the contested and the earlier design from the point of view of the informed user. Differences that are insufficiently significant to affect that overall impression are irrelevant, even though they may be more than insignificant details.

With respect to the fact that the LEGO bricks fulfil, to a certain extent, the technical function of interlocking with each other, the judges referred to Art. 8(3) EUDR, which allows features necessary for interconnection to be taken into account (as an exception to Art. 8(2) EUDR). Therefore, the interconnecting components protected by Article 8(3) EUDR may operate against a finding of a different overall impression, so that, where there are no sufficiently significant differences in the overall appearance of the designs, the existence of connection points that have the same form and dimensions can lead to the finding that the designs do not produce a different overall impression.

The BoA held that the designs coincided in a plate with a cylindrical solid stud on its upper side, smooth surfaces and a crescent-shaped clamp placed at the centre of and perpendicular to the end wall. Given the coincidence of those features, the designs produced similar overall impressions.

LEGO could not convince the judges that the BoA erred with this finding: 

 

a. Additional stud 

 

The additional stud, to which LEGO referred, merely reproduced a feature that was already present. The informed user will be able to perceive the contested design as a continuation of the same pattern established in the prior design.
 

b. Technical features

 

The Court countered LEGO’s argument that the additional stud need not be taken into account because it is technical in nature with a reference to Art. 8(3) EUDR requiring them to be considered.

c. Underside not visible

 

LEGO, supported by the EUIPO, relied on the fact that the underside was not visible in the earlier design and that it differed from the underside of the contested design.

The judges recalled that the sole function of the earlier design is to reveal what must be taken into consideration in that examination within the state of the prior art. It is for the invalidity applicant to submit the necessary information and to identify and reproduce precisely and entirely the design that is allegedly earlier in order to demonstrate that the contested design is invalid.

The Court deducted the view of the underside from the view relied on in support of the invalidity application, since the stud on the top is likely to correspond to a recess of the same circumference located underneath. Additionally, LEGO submitted pictures of the actual product as marketed that showed the underside. These, the judges held, could be taken into account in the assessment of the overall impression for illustrative purposes. Furthermore, the underside of the brick cannot be perceived when the brick is connected with another brick. The visibility of the underside before or after assembly was deemed to be marginal. The underside has a minor impact on the overall impression because it is outside the user’s immediate field of vision.

 

The judges concluded that the underside will remain hidden most of the time.

d. Normal use 

 

LEGO also relied on the definition of “normal use” in Art. 4(3) EUDR and seems to have argued that it follows from case law on this provision that all perspectives of the product must be taken into account, including those which may be perceived before or after the product has fulfilled its principal function. The judges dismissed this argument because the contested design is not a component part of a complex product to which Art. 4(3) EUDR applies.

Comment

True, iudex non calculat, but this decision might raise some eyebrows.

1. The Court frequently repeated the finding of the BoA that the designs have a “similar overall impression”. This phrase seems rather odd. Art 6(1) EUDR states that a design has 

"individual character if the overall impression it produces on the informed user differs from the overall impression produced on such a user by any design which has been made available to the public."

Likewise, the scope of protection of an EU design under Art. 10(1) EUDR 

"include[s] any design which does not produce on the informed user a different overall impression."

These provisions suggest that mere similarity of the overall impression is not sufficient. Rather, the overall impression must be the same because mere similarity means that there are clearly perceptible differences. Designs are, like it or not, not protected against a likelihood of confusion.

While the two LEGO designs certainly produce similar overall impressions, it is questionable whether they are identical in all essential features.

2. The deduction of the underside view of the earlier design is a rather questionable endeavour. As I explained here, such a finding may not be in line with the standard of burden of proof. Findings of fact may not be based on probabilities or suppositions, but must be demonstrated by solid and objective evidence. While logical deductions may be allowed, the appearance of a side of a specific product is difficult to deduce from other products. There is no reason to believe that the underside of that particular LEGO brick, which is not that common anyway, could not be a plain surface or have another form.