Why Rubik's Cube lost the 3D Trademark in Europe-1

In October 2019, the Rubik’s Cube had lost the 3D mark protection after more than 10 years of legal battles.

We all know Rubik’s Cube: from its appearance in late Seventies until today, it’s one of the most loved puzzles, with video tutorial to solve it and world challenges. And China performs quite well in these competitions…

Did you know that the fastest to solve the cube is a Chinese guy, who solved it in 3.47 seconds in 2018? And that also to a Chinese boy goes the Guinness record for solving three cubes whilst juggling? And the youngest is a Chinese girl aged 3 years in 2013 (she took 1 minute and 39 seconds!). We could go on with lots of other challenges, because, as said, the Magic Cube is probably the most popular and long-lived 3D puzzle in the world.

The story began in 1974, when Hungarian sculptor and Professor Erno Rubik invented a Magic Cube for his students to understand the three-dimensional problems. The structural design problem interested Rubik; he asked, "How could the blocks move independently without falling apart?" His solution was to have the blocks hold themselves together by their shape. Rubik hand carved and assembled the little cubies together. He marked each side of the big Cube with adhesive paper of a different color and started twisting. But then he realized that it was very difficult to return to the initial position, with all the color aligned, and that twisting the cubies randomly wouldn’t work. He was right.

Inventor Erno Rubikdemonstrates his cube in London in 1981. *Photo: Associated Press/JohnGlanvill *

The Cube received a patent protection in 1977 in Hungary, however obtained almost no patent protection abroad: only in Belgium (1981) and in USA (in 1983, when it was already well known).

A patent protects an invention, in this case the grid structure on each surface of the cube, the rotating capability, in one word the technical solution of the 3D puzzle. The patent, though, only lasts 20 years.

After the expiry of the patent, the 3D mark of the Rubik’s Cube was successfully registered in 1999, and then renewed in 2006.

That year a toy manufacturer, Simba Toys, filed an application for invalidating the 3D mark.

In October 2008, the Cancellation Division rejected the application of Simba Toys. And so did in September 2009 the Second Board of appeal of EUIO, which confirmed the decision of the Cancellation Division and dismissed the appeal, and then again the General Court in November 2014.

Simba Toys, though, was convinced that the shape of the Rubik’s Cube was functional to the solution of the technical problem, so that every 3D puzzle must have that shape to work.

In fact, a 3D mark is possible only if the shape is absolutely imaginative and not related in any way to a technical solution.

To make an example, a bottle (of perfume, of wine, of water and so on) doesn’t need a specific shape to work and can be protected by a 3D mark. A nail, on the contrary, must have a specific shape, so that you can beat it with the hammer on the head and stick it in the wall. A nail cannot be protected by 3D trademark.

Again then, in 2015 Simba Toys lodged an appeal against the original judgment by application lodged at the Registry of the Court of Justice.

Meanwhile, in 2016, the 3D mark of the Rubik’s Cube was renewed.

In 2017 the First Board of Appeal of EUIPO allowed the appeal, annulled the decision of the Cancellation Division of October 2008 and declared the Rubik’s Cube’s 3D mark invalid.                       

What happened? While in the previous judgments the cube shape did not play any technical function that prevented it from being protected as a 3D trademark, the last decision of the Court rejected this view; and ruled that, in order to examine whether the registration should be refused, EUIPO had to take into account the elements that were not visible, including the ability to rotate.

The European Community trademark regulation does not want trademark law to give a company a monopoly on technical solutions or utilitarian characteristics of a product. Therefore, you cannot through the brand create a monopoly on a technical characteristic, starting from a shape.

Of course, Rubik’s Brand Ldt (owner of rights on the 3D Cube puzzle since 2014) filed an appeal against this decision, but again the EU General Court ruled in October 2019 that the iconic Rubik's Cube does not meet the requirements for registration as a 3D trademark.

Rubik’s Cube loses the 3D trademark, and now the shape can be freely copied, but anyways we can say that, whoever will make it, it would be recognized around the world as Rubik’s Cube.

Silvia Marchi

HFG Law&Intellectual Property