You all should be familiar with a Rubik’s Cube, the three-dimensional puzzle toy that for some reason your grandmother kept on her coffee table to frustrate you while she watched Matlock. This invention of the 1970s still enjoys widespread popularity, with hundreds of millions of them being sold every year. The toy has been patented for some time, but ten years ago, a British company that manages the intellectual property rights for the toy also applied for trademark protection on the cube’s design in the EU. The reason for this should be obvious: patent protections last for limited amounts of time, while trademark rights exist essentially in perpetuity, so long as it’s actively used in the marketplace. It’s an end-around to patent law designed to lock up a monopoly.
But, in the case of the Rubik’s Cube, it didn’t work, as the European Union Court of Justice has correctly determined that the trademark applied for by Seven Towers was for a functional and technical solution, not one of branding. German competitor Simba Toys had challenged the trademark, and it won.
ECJ judges agreed with Simba Toys’ arguments. Their decision is final and cannot be appealed.
“In examining whether registration ought to be refused on the ground that shape involved a technical solution, EUIPO and the General Court should also have taken into account non-visible functional elements represented by that shape, such as its rotating capability,” they said.
EUIPO will now have to issue a new decision based on the ECJ judgment.
Representatives from Rubik’s Brand Ltd. were quick to respond, breathlessly wringing their hands over how this decision will obviously destroy the brands and innovation within the toy market.
Rubik’s Brand Ltd’s president David Kremer said he was baffled that the court ruled that functionality or a technical solution is implicit in the trademark.
“This judgment sets a damaging precedent for companies wishing to innovate and create strong brands and distinctive marks within the EU, and is not what European lawmakers intended when they legislated for 3D trademarks,” he said.
But we can set the Chicken Little shit to the side, here. The damaging precedent would have been if the court instead allowed companies to treat trademark so disdainfully as a technical end-around to patent law. There is a reason why patents have set time periods for protection and getting around them by trying to apply trademark law to that which is clearly in the realm of patents would do the very thing Kremer claims to fear: prevent innovation. After all, given how overprotective companies have become when it comes to their trademarks, it’s easy to see how Rubik’s would respond to any other toy maker attempting to make a toy involving anything resembling a rotating cube. This was about monopolizing a market, not innovation.
It’s good to see a high court slap down attempts like this, regardless.