The Rubik's Cube Solved

The European Court of Justice (ECJ) has held that the shape of the multi coloured three - dimensional Rubik's Cube cannot be protected by trademark, but could be protected by patent. The ECJ's decision is in line with Advocate General (AG) Szpunar's opinion from June 2016 in which the AG decided that the 3D shape is not eligible for trademark protection. We reviewed that decision here. This decision means that the shape of the Rubik's Cube alone is not enough to allow trademark protection to apply to it.

Seven Towns, the UK company which manages Rubik's Cube's intellectual property rights, was able to register the puzzle under a three – dimensional EU trademark with the European Union Intellectual Property Office in 1999. This was subsequently challenged in 2006 by German firm Simba Toys. Simba Toy's challenge was unsuccessful at the European General Court in 2014 in which it was held that the three dimensional trademark was valid. Simba Toy's appealed that decision leading to the current case.

In this case the ECJ held that the rotating ability of the Rubik's Cube should be protected by a patent and not a trademark. In reaching this conclusion, the ECJ made clear that in assessing trademark applications, analysis should first be based around the shape involved but that consideration must be given to the additional elements of a shape including the function and essential characteristics of the goods at issue. Thus, here the European General Court had failed to do so by not taking into account the rotating elements of the three dimensional Rubik's Cube which the trademark sought to cover.

It is arguable that the judgement is not surprising given the ECJ's decision in 2010 that the Lego brick could not be protected as a trademark given that it merely performed a technical function and to grant a trademark would be unfair to competitors.

Whilst the Rubik's brand will still have protection through any other intellectual property rights it holds in the Rubik's Cube, the shape itself will now be free to use by competing manufacturers. Given the decision, it is likely that toy manufacturers will now begin to review any of the three dimensional trademark registrations which they own.