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10 November 2016Trademarks

Rubik’s Cube shape not a trademark, says CJEU

The shape of the Rubik’s Cube is not a trademark, according to a decision by Europe’s highest court.

Today, November 10, the Court of Justice of the European Union (CJEU) set aside a judgment of the General Court and annulled the European Union Intellectual Property Office’s (EUIPO) decision confirming registration of the shape.

In 1999, the EUIPO granted a 3D registration for the cubic shape. Seven Towns, a UK company, was set up to manage the intellectual property rights relating to the Rubik’s Cube.

But in 2006, Simba Toys, a German toy manufacturer, applied to the EUIPO to have the mark cancelled on the ground that “it involved a technical solution consisting of its rotating capability, since such a solution may be protected only by patent and not as a trademark”.

Simba Toy’s cancellation bid was dismissed by the EUIPO, so the company then brought an action before the General Court in which it sought annulment of the EUIPO’s decision.

In 2014, the General Court dismissed the action, taking the view that the technical solution “characterising the Rubik’s Cube did not result from the characteristics of that shape but, at most, from an internal and invisible mechanism of the cube”.

In a press release, the CJEU said: “In examining whether registration ought to be refused on the ground that that shape involved a technical solution, EUIPO and the General Court should also have taken into account non-visible functional elements represented by that shape, such as its rotating capability.”

It added that, contrary to what the General Court found, “the essential characteristics of the cubic shape in issue must be assessed in the light of the technical function of the actual goods represented”.

Rubiks Brand was founded in 2013 as a new administrative entity of Seven Towns. As a result, the IP management was transferred to Rubiks Brand.

David Kremer, president of Rubiks Brand, told WIPR: “We are disappointed by today’s decision by the CJEU. While Rubiks Brand is fortunate in having other trademarks, copyright, passing off and unfair competition to rely on which will continue to ensure its exclusivity, this judgment sets a damaging precedent for companies wishing to innovate and create strong brands and distinctive marks within the EU, and is not what European lawmakers intended when they legislated for 3D trademarks.

"We agree that a 3D trademark should not infer functionality as that would restrict free trade and misuse ... However there are identically functioning puzzles on the market which are not similarly shaped to the well-known Rubik's Cube with its distinctive grid pattern (for example spherical twisting puzzles with an identical number of elements) and there are identical looking products to the Rubik's Cube without any rotating or puzzle functionality."

He added: "Therefore we are baffled that the court finds functionality or a technical solution implicit in the trademark."

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