The 70s icon of the entertainment and games industry, has come under fire this week after a judgment made indicates that the shape of the toy cannot be protected by trade mark registration.
In the Case C-30/15 P, Advocate General Szpunar argued that the 3D shape of the cube was solely in relation to its technical function and was essential for it to work therefore could not be protected by trade mark law in the EU.
The Rubik’s cube’s intellectual property history has been a long a windy road with twists and turns. This has led to the recent confusion.
Initially after its creation and popularity in the 1970’s, the shape and functionality was protected by a patent. A patent only gives protection to an innovate process or product that has a unique element or function.
Many years later, its protection was taken up a step when the British company Seven Towns applied to register the shape as a 3D EU trade mark in respect of three-dimensional puzzles. This application was successful and laid unchallenged for a number of years.
This was until the German toy manufacturer Simba Toys sought the cancellation of the mark as they stated it fell short of Article 7(1)(e)(ii) EU Trade Mark Regulation (EUTMR). They stated that the mark contained a technical solution and this would render the mark as unable to be registered.
This claim was rejected by both the Cancellation division and the Board of Appeal of the European Union Intellectual Property Office, claiming the shape was not for a technical result therefore not in breach of the provision.
These findings were also confirmed by the General Court.
However, the Advocate General Szpunar has their own opinion on the matter and has deemed the General Court’s reasoning against the public interest. The aim is to keep essential characteristics of particular goods reflected in the shape within the public domain. The AG has argued that by underestimating the functionality of the cube’s shape had undermined this public domain.
The AG also stated that the final judgment on this matter should be given by the CJEU.
Following this, it will be interesting to keep an eye on the outcome, as not only can it affect future products but it can also spell the end to a well-loved toy that has given entertainment to many generations.