Back in September, EU judges ruled in favor of Mega Brands and against Lego, canceling Lego's trademark on the brick. The ruling, which took out a trademark that had been in use since 1999, was deemed to create an unfair monopoly on a functional shape.

Greg Aharonian had a nice follow-up piece in PATNEWS noting that Lego also owns a number of related US design patents that might similarly be at risk. The challenge in understanding how this might fall out is in distinguishing 'ornamental' from 'functional' elements. For example, in a Lego brick the distinctive round pieces on top are ornamentation on a basic brick shape, but they're also key to the block's functionality as they are the part that plugs into the base of other bricks. In theory design patents are used to protect nonfunctional ornamentation - often called aesthetics or decoration. But in the Lego brick, separating ornament and function isn't so straightforward.

Rachel Gordon, in an Intellectual Property Brief posting for Washington College of Law, points out that Lego has been moving to protect its brand trademark, by working to separate the word "Lego" from the generic "plastic brick with studs on top." But this isn't going to help them recover their brick trademark, nor does it help with the question raised about the functional/aesthetic fuzziness.

Unfortunately, news stories on the topic have been nonexistent in the past month; anyone got any insights?