Rubiks Cube to lose trade mark protection?

Rubik’s cube, one of the world’s most-recognised toys, may be stripped of some trade mark protection by an EU court this week — dealing a blow to efforts to safeguard product shapes that are deemed distinctive and functional.

This case over a four-decade-old multi-coloured, puzzle has surprised observers, both because of the toy’s enduring appeal and because critics say it would result in a weakening of intellectual property protections.

“We’re seeing it in copyright, as well as in trade marks — intellectual property rights have been watered down gradually over the past 18 months,” said Nick Kounoupias, general legal adviser to Erno Rubik, the cube’s creator.

In May, the Court of Justice’s advocate general recommended cancelling the EU trade mark registration covering the cube’s three-dimensional shape, arguing that a shape that is necessary to produce a “technical result” — in this case, creating a rotational puzzle — is ineligible for this kind of protection.

A full hearing is due to take place in Luxembourg on November 10 2016, but most advocate general opinions are typically accepted by the court.

That has left the cube’s various licensed makers fearing they will lose the trade mark protection first registered in 1999 and face competition from all kinds of cheaper imitations.

Lately there has been a series of high-profile failures to secure trade mark protection for distinctive shapes has suggested winning such cases is increasingly difficult.

Nestlé, the Swiss food group, was unable to trade mark its four-fingered chocolate bar KitKat in the UK, after a High Court ruling in January. This followed a setback at the European Court of Justice when the advocate general said the shape of the bar was not distinctive enough to gain trade mark protection.

Had Nestlé been successful, it would have gained a monopoly over the KitKat shape and prevented other chocolate manufacturers from making similar looking products.

Fellow Swiss chocolatier, Lindt & Sprüngli also failed in its attempts to trade mark the shape of its gold foil-wrapped Easter bunny in the German courts, in 2013.

Last year, Lego won the right to trade mark its mini figures — used to represent its wide variety of characters. However, the Danish toymaker lost trade mark protection over its own Lego bricks six years ago. As in the case of Rubik’s cube, the Lego brick decision hinged on the “technical result” argument.

Rubik’s case has also highlighted efforts to extend additional protections over enduring, inventive items that can outlive standard 20-year patents. To some, however, the enduring appeal of Rubik’s cube, after decades of technological advances, is itself a puzzle.

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