A toy can be in any shape. Toys have provided enough infotainment from children to pets, to customs lawyers if one recalls the disputes over classification of Halloween costumes and flying discs for dogs to play with (HQ H240490, Canine Hardware Inc) and of course IP lawyers. So the CJEU in Best-Lock v. OHIM was not dealing with a novel situation. The mark in dispute was a three dimensional figure registered for ‘Games and playthings; decorations for Christmas trees’.
Challenging the registration, the applicant argued that since the shape sought to be registered was determined by the nature of the goods - building blocks and the possibility of joining them to other interlocking building blocks for play purposes. The applicant said that this was an absolute ground for refusal to register and since it incorporates a technical solution and it would impede the use of the same by other manufacturers. However, neither the OHIM, nor the CJEU were convinced. It was observed that the figure in question was like a manikin used for play purposes. The fact that the figure represents a character and may be used by a child in an appropriate play context is not a ‘technical result’. The CJEU emphasised on the word ‘sign consisting exclusively of shape necessary’ to obtain the result. Also the coupling elements which enabled joining of different blocks were not among the essential characteristics of the trademark and did not allow the figure to be joined to interlocking building blocks.