ECJ says Rubik’s Cube not protected by Trade Mark

The Rubik’s Cube – the multi-coloured game cube that has baffled the nation since the 1980s –  has been the subject of an EU court ruling in which its trade mark protection has effectively been removed.

The Rubik’s Cube had been protected since 1999 under an EU trade mark registered as a 3D shape by British manufacturer, Seven Towns.  However in 2006 an  application was  made by a German company, Simba Toys, to have the trademark declared invalid, this failed, and the General Court agreed on appeal.   In each case Simba Toys alleged that the shape was functional due to the inner workings of the cube and its rotating components.  The General Court acknowledged that the mark as filed gave no indication of the internal rotating function of the cube. 

Simba Toys appealed again to the European Court of Justice (ECJ) which ruled that the General Court should have defined the technical function of the actual goods at issue, namely a three-dimensional puzzle, and it should have taken this into account when assessing the functionality of the essential characteristics of that trade mark.

The ECJ said that the “essential characteristics of the cubic shape in issue must be assessed in light of the technical function of the actual goods presented”. This was not just a question of the shape but the fact that it is a rotating cube.  There was, essentially, too much functionality for it to be trademarked as the– design was purely functional.

The ECJ’s ruling is particularly significant as it overturned an earlier EU ruling and the decision of the European Union Intellectual Property Office (EUIPO) confirming the registration of the Rubik’s Cube as an EU trademark.

What does this mean?

The EUIPO now need to consider how it treats future applications.  This will have  implications for companies who are seeking to create strong, distinctive brands  out of individual product lines and in particular for those whose key products have functionality attached to them.  Whilst 3D objects can still be trade marked, the risk to companies creating 3D games, machines, and other 3D objects that have a level of functionality attached, is they may not be able to protect their brands in the way they would wish, so the full suite of intellectual property right protections should be assessed at an early stage.

Companies who currently own trade marks on 3D objects may also need to review their marks and assess if they are at risk as a result of this ECJ ruling.

How can we help?

We provide business organisations with expert commercial advice on trade marks, patents, copyrights and designs.  If you need advice or you have any concerns about protecting your intellectual property rights, contact the experienced intellectual property solicitors at Herrington Carmichael for specialist advice as soon as possible.

For further information or to discuss the issues raised by this article, please contact Alex Canham on 0118 977 4045.