Rubik’s Cube Loses Trade Mark Battle
The European Court of Justice has held that the shape of the iconic Rubik’s Cube cannot be protected by a trade mark.
Since its invention in 1974 by Ernő Rubik, over 350 million Rubik’s Cubes have been sold worldwide – making it one of the best-selling toys in the world. The shape of the Rubik’s Cube was offered EU trade mark protection in 1999 in relation to ‘three-dimensional puzzles’. This was challenged in 2006 by a German firm, Simba Toys. Simba’s application was rejected by the European Union Intellectual Property Office and the EU General Court, but has succeeded in the European Court of Justice.
The Court’s Findings
The Court held that the fact that the trade mark application for the Rubik’s Cube shape did not specify that it had a rotating mechanism did not prevent this from being a relevant consideration when assessing whether the shape was merely functional. Having taken the rotating capacity of the Rubik’s Cube, the Court found that the essential characteristics of the trade mark were functional and therefore could not be afforded trade mark protection as a trade mark must be capable of distinguishing goods or services.
The Court also found that not considering the technical function of the shape mark (in this case, its rotating capabilities) would broaden the scope of the protection to include every type of three-dimensional puzzles with cube-shaped elements, regardless of their function. The Court held that this would granted an unfair monopoly on technical solutions or functional characteristics of a product.
Key Takeaway Points
This case demonstrates the importance of the ability of the essential characteristics of a trade mark to distinguish the goods or services of one trader from another’s. It shows us that in evaluating whether a shape trade mark is functional, the Court will consider the technical function of the goods concerned; even where these technical functions cannot immediately be discerned through the graphic representations of the shape mark.
(European laws may differ with the legal position in Australia)
Image Attribution – Wikipedia
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