Most of us asked for the magic cube as children, twisted it in every possible direction, and quite possibly broke it. Coming across one recently, I found myself wondering about the intellectual property behind it — and discovered its shape mark had just been struck down.
The ruling
In a judgment of November 2016, the Court of Justice of the European Union ruled against the Rubik’s Cube shape mark.
The dispute ran for years against the German toy company Simba Toys GmbH, which had sought cancellation of the mark registered for three-dimensional puzzles on the ground that it embodied technical solutions and functionality, and therefore did not qualify as a valid trademark.
EUIPO and the General Court took a different view. In 2014 the General Court upheld the mark, which set the appeal in motion — and the CJEU reversed.
Why functionality defeats a shape mark
The principle is well established: marks consisting of features that contribute to a technical function or utility are not valid trademarks. The CJEU concluded the Rubik’s Cube fell into that category.
The rationale matters more than the result. A trademark can be renewed indefinitely, so allowing registration of a functional shape would let a proprietor hold a perpetual monopoly over how something works — which is the domain of patents, deliberately time-limited in exchange for disclosure. Granting that through trademark law would let a rights holder outflank the patent bargain entirely.
The specific error the CJEU identified was in how the earlier tribunals had examined the mark. They had assessed the graphic representation — a cube with a grid structure — without considering the rotating capability that the structure actually serves. The essential characteristics had to be assessed by reference to the technical function of the actual goods, not merely to what the picture showed.
For a brand owner, this was a serious blow to a company that had protected its IP vigilantly, given the Cube’s enduring popularity.
The Indian position
Out of curiosity, I searched the Indian Trade Marks Registry records and found several Rubik’s Cube applications, including two-dimensional marks of the Cube, at a preliminary stage with a considerable way to go before registration.
The Indian framework raises the same obstacle. The Trade Marks Act bars registration of a mark consisting exclusively of a shape of goods necessary to obtain a technical result — alongside shapes resulting from the nature of the goods and those giving substantial value to them. A functional shape faces the same objection here as in Europe.
The 2D applications are the interesting move, and a sensible one. A two-dimensional representation of the Cube’s distinctive appearance is a different proposition from a claim over the three-dimensional shape itself: it is closer to a device mark, and does not seek to monopolise the mechanism.
The alternative routes are worth noting too. A design registration protects appearance for a limited term — ten years, extendable by five in India. A patent protects the mechanism, for twenty years from filing. Both expire; a trademark need not, which is exactly why the functionality exclusion exists.
How the puzzle unfolds
The Rubik’s Cube is widely known and recognised as a brand, so the CJEU’s decision carries real weight. The question is what follows from it — while I attempt to solve the Cube.
The takeaways
- Functional shapes cannot be trademarks — that is what patents are for.
- Assess the technical function of the goods, not just the graphic representation.
- India bars shapes necessary to obtain a technical result on the same reasoning.
- Designs and patents are the alternatives — both limited in term, deliberately.
Frequently asked questions
Why was the Rubik’s Cube shape mark invalidated? Because its essential characteristics perform a technical function — the rotating capability — and functional shapes cannot be monopolised through trademark law.
Can a product shape ever be a trademark? Yes, where the shape is not necessary to obtain a technical result, does not result from the nature of the goods, and does not give substantial value to them.
How should a functional shape be protected? Through a patent for the mechanism or a design registration for the appearance — both of which are limited in term, unlike a trademark.
Does India take the same approach? Yes — the Trade Marks Act bars registration of shapes necessary to obtain a technical result, on the same reasoning.
Useful official resources
- Court of Justice of the European Union
- EUIPO
- The Trade Marks Act, 1999