This Thursday, 10 November 2016, the European Court of Justice decided whether or not to uphold the three-dimensional trademark regarding the well-known Rubik’s Cube.

The Rubik’s Cube was invented by the Hungarian Erno Rubik in 1974. It has been very popular throughout the years all over the world. According to the Rubik’s Cube’s website since the international launch in 1980 about 400 million cubes have been sold worldwide.

The challenging lawsuit was brought forward by the German company Simba Toys who claimed that the right way to protect the Rubik’s Cube features was a patent rather than a trademark. A trademark grants the owner exclusive rights to registered designs, while patents only protect inventions for a certain period of time.

The trademark registered to protect the Rubik’s Cube referred to its shape. Simba Toys pointed out that not the shape but the mechanism was crucial to the Rubik’s Cube, which leads to the conclusion of a patent being the more suitable way of protection. Simba already challenged the trademark in 2006 but the European Intellectual Property Office as well as the General Court dismissed the lawsuit. Only now, 10 years after initially filing the claim, the European Court of Justice, located in Luxembourg, agreed with Simba Toys’ reasoning and ruled that the Rubik’s Cube’s shape is not eligible for trademark protection but should rather be protected by patent.

The ECJ judges ruled: “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.” The outcome of the judgement thereby made it impossible to use a registered trademark for a technical functionality as a way of granting a monopoly for that specific product in favour of the trademark’s owner. This has already been a principle in IP law but was strongly underlined by the European Court of Justice’s decision.

Even though the judgement seems like a good sign for companies like Simba Toys who sell their own versions of the Rubik’s Cube, but one can take it as a reduction in scope of intellectual property protection, too. The Rubik’s Cube and its shape are recognised by the majority of people and still its shape seems not to be protectable. The reasoning brought forward by the European Court of Justice is in line with former decisions regarding the registration of shapes as a trademark. About one year ago KitKat tried to protect the shape of its chocolate bars but was not able to convince the European Court of Justice of its distinctiveness. Only Lego was successful at the European Court of Justice earlier last year when the company’s trademark protecting their Lego People’s shape was challenged by another company.