Lego My Ego

LEGOs* were a part of my childhood. I think that for people of a certain age, this is almost universally true. Creating imaginary worlds is as much a part of childhood as eating dirt (What? You didn’t do that? Ah…Neither did I…). But like most things from my childhood, lawyers tainted it. This might be why I decided to go to law school.

Recently came across this web-comic and noticed that it said “This material is presented in accordance with the LEGO^® Fair Play Guidelines.”

The LEGO’s Fair Play Guidelines are probably the worst example of something I enjoyed from childhood being destroyed by law. What’s wrong with them. Pretty much everything. They represent a growing trend in trademark law, which is tantamount to word ownership. Also, guidelines like these pervert the very function of trademark.

Ok, I’ll stop speaking legalese and break this down. The guidelines purport, in very official sounding language, that Lego trademarks

What is a trademark for?

Trademarks are used to protect consumers with respect to the source of goods and services. Trademarks essentially act as a signal to consumers as to where a good or service originates. If trademarks did not exist, then consumers could be confused as to what company was providing a particular product. Trademarks Trademark law does not protect producers, it is designed to protect consumers.

What is trademark NOT for?

Trademark does not exists to give companies the power to own and control words. This 1984-esq understanding of trademark law is frightening to say the least. Just to be clear, YOU CANNOT OWN A WORD! Words represent ideas, and ideas are not protectable in intellectual property. Just because you can technically say you ‘own’ a trademark on a word does not mean you own that word. Trademark could best be described as a right to protect consumers from confusingly similar goods or services. But in no sense is it a ‘right’ like copyright or patent, in which the owner has a right to exploit the intellectual property for their own benefit.

LEGO’s Fair Play guidelines twist the original purpose of trademark and attempt to use it to control the description of their product for example:

If the LEGO trademark is used at all, it should always be used as an adjective, not as a noun. For example, say “MODELS BUILT OF LEGO BRICKS”. Never say “MODELS BUILT OF LEGOs”.Also, the trademark should appear in the same typeface as the surrounding text and should not be isolated or set apart from the surrounding text.

These kind of instructions seem nonsensical to the original purpose of trademark. How is a consumer protected by restrictions on the use of the word legos? How is saying “I made this space-pirate ship out of legos.” somehow preventing consumer confusion? If anything it provokes more confusion by creating the tortured phrase “LEGO Bricks” instead of the more commonly used term “Legos.”  I mean the restrictions even try to limit what PART OF SPEECH YOU CAN USE FOR THE COMPANIES NAME. LEGO can only be used as an adjective, not as a noun. Which is why I propose that when someone uses a trademark to impose some kind of idiotic speech code it should be referred to as “Legoing.” Companies of the world, you cannot control how someone Wal-marts your company name in an non-commercial or parody context. It’s just not cool. (Wal-marts [verb.] here means “uses”, often in the sense of a violation.)

When I was a kid I used to say that I was playing with my Legos. This is how kids refer to the object. Heck, it’s how the general public refers to the product. If I showed you;

What would you say this is a picture of? If you said a variety of interlocking LEGO (R) blocks, then you have no childhood.

Strangely, the law encourages this kind of idiocy. The main thing that LEGO’s guidelines get right is that trademarks have to be protected or else they can become generic. Trademark is an all or nothing game, if your trademark becomes generic you lose almost all rights to protect the mark. Great trademarks like Velcro, Dry Ice, Aspirin, and my personal favorite Heroin. Yes, Heroin used to be a trademark of the Friedrich Bayer & Co from 1898. These marks began to generally refer to products in the field. In most cases they were victims of their own success. They became such leaders in their field that their popularity lead to all similar products being called by their trademark. These marks subsequently lost their protectable status.

LEGO however is really in  a class of it’s own. Few other companies make interlocking blocks. When you refer to LEGOs you are most likely referring to LEGO’s own product. There is no consumer confusion, because consumers cannot be confused if they use a mark to refer to the company’s own product. LEGO is crying over un-spillt mik

Although the site claims that these rules prevent confusingly similar uses of LEGO trademarks and LEGOs this does not seem to be their primary intent. The bold headings and official sounding language are designed to make you believe that this is the law. Even when Lego glosses over the truth. LEGO’s guidelines state:

The LEGO Trademark cannot be used in an Internet Address

The LEGO trademark should not be incorporated into an Internet address. Internet addresses have become useful tools for people to identify the source of a homepage. Using “LEGO” in the domain name would be creating the misleading impression that the LEGO Group sponsored the homepage.

Of course this is this is mostly false. Lego states the above like it is a fact, instead it is a huge gray area. The one clear example of where using LEGO in a title is permitted would be to disparage the company. If I registered the domain legogroupsucks.com I would most likely prevail in a domain names dispute, as the example of Walmartcanadasucks.com indicates. This is because disparaging uses of trademarks are less likely to be confused with the actual trademark. But the fair play guidelines do not mention this exception, they make it seem like there are no exceptions. There is also the example of non-commercial use and non-competing commercial use, which would not create consumer confusion and could be protectable uses of the word lego (Like my new Spanish American car company Le Go) . LEGO could be just stating a general rule, but it also could be seen as a measure of limiting all descriptions, other uses,  or criticism of LEGO or  legos. (As a note legogroupsucks.com really exists, and you should check it out. The guy was actually a fan of legos until he tried to create a fansite using the word lego in the url.)

Companies, stop trying to use trademark law to control language. We will call products what we want. If you are popular enough to become a household name, thank the people who made you so popular. But use trademarks in a way that protects your consumers. Don’t wield your intellectual property like a weapon against the people it is designed to protect.  In other words do go legoing your customers.

*The word LEGOs and all variations of LEGO are presented with emphasis so as to show the authors contempt of the LEGO Fair Play Guidelines. LEGO is a registered trademark of a big-brother type corporation who believes that unauthorized trademark use is double-plus ungood. Lego does not endorse or sponsor this website in any way, and I wouldn’t let them since they have tainted part of my childhood with their attempts to enforce their draconian rules. Photo by Jonathan Stewart, used under a CC 2.0 Generic.