Lego (Billund / Denmark; www.lego.com) has lost its legal battle to register its red eight stud brick as a trademark. The European Court of Justice in Luxembourg turned down the toy marker’s appeal to overturn a decision made in 2004 to cancel the trademark. The court said the functional shape of a brick could not be registered as a trademark.

Lego will be unable to appeal against the decision. Peter Kjær, Lego’s head of intellectual property, said: “This was the court of final instance, and we have no option but to note the court’s ruling. The ruling has been given on the question of whether the brick is functional or not – and the court has concluded that it is functional. We have always disputed this – and continue to do so. In other court actions we have shown that bricks with virtually the same function can have other appearances."

The ruling means that Lego is not permitted to claim exclusive right to the use of an eight-stud brick as a trademark. Canadian rival Mega Brands (www.megabrands.com) had challenged Lego’s trademark application. Kjær said Lego was concerned that the use of the brick by others could dilute the trademark and that consumers could be misled into believing that they were buying a Lego toy when they were purchasing a different product.