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EU Court Keeps Rubik’s Cube Shape Protected

(CN) - An eight-year battle over the trademark of the Rubik's Cube's shape ended with the European General Court ruling on Tuesday that the mark does not involve a technical solution to the puzzle that would exempt it from protection.

In 2006, German toymaker Simba asked the EU's trademark office to cancel a mark issued to U.K.-based Seven Towns, which manages the intellectual property rights of the Rubik's Cube. Seven Towns had the shape of the puzzle trademarked in 1999.

Simba claimed that protecting the Rubik's Cube's shape involved a technical solution to the puzzle, since it invoked the cube's rotating capabilities. That should have been protected by a patent rather than a trademark, the toymaker said, an argument the trademark office rejected.

The German toymaker appealed to the European General Court, which ruled on Tuesday that the trademark involved only the shape and grid structure of the puzzle - and not the internal mechanism that allows it to rotate.

"The black lines and, more generally, the grid structure on each surface of the cube in question do not perform, or are not even suggestive of, any technical function," the Luxembourg-based court wrote in a 14-page opinion. "Whilst it is true that the grid structure constitutes above all a decorative and imaginative element which plays an important role in the shape in question as an indication of origin, it has also the effect of dividing visually each surface of that cube into nine equal square elements. However, that cannot strictly speaking constitute a technical function for the purposes of the relevant case-law. In that regard, it should be recalled that it was not the intention of the Legislature that a shape of goods would be refused registration as a trade mark solely on the ground that it has functional characteristics since any shape of goods is, to a certain extent, functional."

And contrary to Simba's claims, the trademark will not allow Seven Towns to keep other toymakers from making their own three-dimensional rotating puzzles, the court said.

"The registration of that mark does not have the effect of protecting a rotating capability which the shape in question allegedly possesses, but solely the shape of a cube the surfaces of which bear a grid structure, which gives it the appearance of a 'black cage,'" the court wrote. "That mark cannot in particular prevent third parties from marketing three-dimensional puzzles that have a shape different from that of a cube or that have the shape of a cube but whose surfaces do not consist of a grid structure similar to the Rubik's Cube, and prevent those puzzles from incorporating or not incorporating a rotating capability. It is apparent from the documents before the court that, on the date on which the application for registration of the mark applied for was filed, there were already a number of three-dimensional puzzles on the market having a rotating capability and which had shapes different from that of a cube and/or bore motifs different from those of a grid structure."

Simba Toys has 60 days to appeal the lower court's decision to the European Court of Justice.

A virtual symbol of the late 1970s and 1980s, over 350 million Rubik's Cubes have been sold since it was invented by Hungarian sculptor and professor Erno Rubik in 1974 - making it the world's best-selling toy.

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