(CN) — An EU high court adviser said Wednesday that the Rubik’s Cube shape cannot be trademarked since the shape is essential to its function — something suited for patent protection instead.
European Court of Justice Advocate General Maciej Szpunar’s opinion is the latest wrinkle in the 10-year battle over the trademark of the Rubik’s Cube’s shape, issued by the EU’s trademark office in 1999.
In 2006, German toymaker Simba asked the trademark office to cancel the mark issued to U.K.-based Seven Towns, which manages the intellectual property rights of the Rubik’s Cube.
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.
On appeal, the European General Court ruled in 2014 that the trademark involved only the shape and grid structure of the puzzle — and not the internal mechanism that allows it to rotate — and was therefore appropriately issued.
Simba took its case to the EU’s high court, and in an advisory opinion for the court Szpunar on Wednesday recommended reversing the lower court’s decision and canceling the trademark.
Szpunar said that the general court focused on the characteristics of the cube, but failed to assess the whether those characteristics also involved the technical functioning of the puzzle.
“In order to carry out a proper analysis of the functional features of the shape the general court should have first taken account of the function of the goods concerned, namely the three-dimensional puzzle, that is to say a brain-teaser consisting of a logical arrangement of movable elements,” Szpunar wrote. “Had the general court taken account of that function, it could not have rejected the appellant’s claim that the cube in question will be perceived as consisting of movable elements divided by black lines.”
Since the shape of the Rubik’s Cube, its grid structure dividing horizontal and vertical columns and the movable parts of puzzle are all necessary to perform the puzzle’s technical function, a trademark is inappropriate in this case, Szpunar said.
Furthermore, the adviser said that allowing a company to trademark a cubical puzzle runs contrary to public interest, since the mark holder could “extend its monopoly to the characteristics of goods which perform not only the function of the shape in question but also other, similar functions.”
Szpunar’s opinion is not binding on the European Court of Justice, which has begun its own deliberations in the case.
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