Lego vs. Mega Bloks: No More Fun and Games

OTTAWA, ON (SP) — Butter vs. Margarine; Williams vs. DiMaggio; Britney vs. Christina: Each of these age-old rivalries has inspired fierce debate over which is the tastier, prettier or more talented, as the case may be. Very soon, another bitter rivalry will finally be resolved by moving the forum of discussion from the playroom to the courtroom. Several years ago, Lego, the popular manufacturer of children's building blocks, commenced legal proceedings in Canada against Mega Bloks, claiming that the products produced by Mega Blocks violated Lego's intellectual property rights. Mega Bloks was successful at trial, but Lego appealed the case all the way to the Supreme Court of Canada, which last month agreed to hear the appeal.

The litigation was initially commenced in the United States, and Lego was successful in obtaining an award of damages against Mega Bloks for trademark infringement. However, Mega Bloks rationalized this outcome by concluding that it was the victim of partisan politics from the bench. Specifically, it points to the fact that when the case reached the U.S. Supreme Court, conservative judge Antonin Scalia refused to recuse himself from the case, despite a long-standing friendship between Scalia and former Lego board member Dick Cheney.

As recently as a few months ago, the Cheney and Scalia families jointly visited Legoland theme park in California. The two families traveled together and stayed in the same hotel. However, Scalia defended the trip on the basis that the families did not visit the same parts of Legoland at the same time. "We spent the vast majority of our time in the Imagination Zone, while the Cheneys stayed almost exclusively in the Medieval Times section," said Scalia. "It's almost as if we were in two completely different theme parks."

Lego was also accused of overtly pandering to the Bush administration by releasing a Space Lego set consisting of the North American Missile Defense Shield that the administration is seeking to build. Lego also released a special commemorative "Bush at War" set that pays tribute to President Bush's years of service with the National Guard during the Vietnam War. The set even comes with a complete set of Bush's dental records from that period.

Although Lego also released a John Kerry Vietnam War set, Mega Bloks accused Lego of exhibiting a double standard, given that the Kerry set did not include any of the medals or ribbons that he earned during several tours of duty in Vietnam. Lego maintains that it was simply being historically accurate, given that Kerry subsequently discarded the medals and ribbons at a war protest in Washington, and there remains some question as to whether Kerry really deserved all three of the Purple Hearts that he was awarded.

When a decision was finally rendered by the U.S. Supreme Court last spring, the conservative majority on the court ultimately ruled in Lego's favor. Writing for the majority, Chief Justice William Rehnquist rejected the argument advanced by Mega Bloks that the nature and design of its interlocking blocks was fundamentally different from the blocks used by Lego. "Pregnant blocks, dimpled blocks, hanging blocks: Like the blocks themselves, these terms are readily interchangeable and virtually indistinguishable," wrote Rehnquist. "In short, it is a distinction without a difference."

Mr. Justice Clarence Thomas, who almost always simply concurs with the judgments written by Rehnquist and Scalia, took the unusual step of issuing his own separate concurring reasons in this case. His decision focused almost exclusively on the argument advanced by Mega Bloks that its product could be distinguished based on the color of the blocks, the overwhelming majority of which are darker than the blocks used by Lego. "For Mega Bloks to suggest that it was somehow entitled to special treatment based on the color of its blocks is a blatant example of affirmative action of the very worst kind," wrote Thomas. "Moreover, the 'separate but equal' doctrine was rejected by this court a very long time ago, and we certainly aren't about to resurrect it."

Now that the Supreme Court of Canada has granted leave to appeal the Lego decision, the focus shifts once again on the question of who will be named to replace the two vacancies created by the recent resignation of Louise Arbour and the retirement of Frank Iaccabucci. None of the remaining seven judges have much experience in the field of Lego law, so it is believed that Prime Minister Paul Martin will be under pressure to appoint at least one judge with some expertise in that area.

One leading candidate is Ontario Court of Appeal judge John Laskin, son of the former Chief Justice Bora Laskin. In addition to being a preeminent jurist, Mister Justice Laskin owns one of Canada's most extensive Lego collections, and has been known to use this collection to stage meticulous recreations of the Battle of the Plains of Abraham.

Given that Martin is likely to name a female judge to fill at least one of the vacancies, Ontario Court of Appeal judge Eileen Gillese is likely also a frontrunner. Although Madam Justice Gillese is not an expert in Lego law per se, she is quite well versed in several similar building block-based games, such as Mechano and Jenga.

It will likely be many months before the Supreme Court of Canada renders a decision in this case, but those who wish to read the decision of the Federal Court of Appeal, the Quicklaw citation is [2003] F.C.J. No. 1112. The decision contains approximately 5,000 words, and is not recommended for children under the age of 12.

[ QED ]