The Rubik’s Cube is one of the most iconic and distinctive toys ever made and has been popular amongst young and old across the globe for over 20 years. To date, the brain teaser remains the world’s best-selling toy.

However, they have just lost their trade mark following a puzzling ruling from the European Court of Justice following a challenge from German toy company Simba Toys, in a legal dispute raised in 2006 with more legal twists and turns than a twisty turny thing.

Rubik’s Cube sought to protect their product’s iconic shape with an EU 3D Trade mark at the European Union Intellectual Property Office in 1999 through UK based company Seven Towers. Simba Toys challenged the trademark claiming that the rotating capability of the cube ought to be protected with a patent rather than a trade mark. The implication of this is that whilst a trade mark can last infinitely subject to renewal, a patent has a maximum term of 20 years.

The court held that the “technical function,” meaning the cube’s rotating capability, had to be taken into account when assessing the “essential characteristics” of the shape for trade mark registration. The case has now been sent to the EU Intellectual Property Office to reassess the trade mark in light of the ECJ’s findings that the trade mark was invalid. David Kremer, President of the Rubik’s brand stated that he was “disappointed” and “baffled” by the decision that assessing the functionality of the cube was “implicit in the trade mark” when other Rubik’s Cube products such as squeezable and plush toy versions had no such rotating function.

Whilst Rubik’s Cube have other trade marks, passing off and copyright protection they hope will protect the brand, Kremer expressed that the judgment “sets a damaging precedent for companies wishing to innovate and create strong brands and distinctive marks within the EU.”

So has the game been changed by this decision? What this ruling demonstrates is that to protect any product, companies must have recourse to patent law rather than trade mark law if they wish to protect the functionality of a product. It reaffirms that the ECJ is not willing to allow for eternal monopolies on technical solutions or functional characteristics of products and therefore distinctive products such as the Rubik’s Cube are unlikely to be protected solely on the merits of their shape. It is likely that this case will lead many companies, especially in the toys and games industry, to question the viability of their own 3D trade mark registrations. How puzzling indeed…

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Ryan Lisk

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Ryan has helped a vast number of businesses protect and control their intellectual property as well as drafting and advising on consumer and commercial contracts.

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