The Rubik’s Cube has 43 quintillion — that’s 1,000,000,000,000,000,000 — combination possibilities. It also has nearly as many years of trade mark litigation, in the ongoing dispute between Steven Towns, the licence manager, and German toy maker Simba Toys.
In 1996, Steven Towns filed a community application for the 3D sign below, in class 28, with the description “three-dimensional puzzles”. The mark registered in 1999.
In 2006, Simba Toys filed a request for a declaration of invalidity, claiming the sign was incapable of distinguishing the goods of one undertaking from another undertaking, devoid of distinctive character, descriptive and consisted of a shape which was necessary to obtain its technical function. The cancellation division rejected the application in its entirety and Simba Toys appealed the decision.
The original decision was upheld by the Board of Appeal. It dismissed the arguments of Simba Toys by finding that the mark had been adequately represented graphically. It concluded there was no reason why it was not capable of distinguishing the goods and services of one undertaking from those of another. Simba Toys also failed to demonstrate that the mark departed significantly from the customs of the sector — there was insufficient evidence to show that a “cubic grid structure constitutes a ‘norm’ in the particular field of 3D puzzles”. The mark also displayed sufficient characteristics to be seen as inherently distinctive for the goods concerned.
The board also stated that the “cubic grid structure gave no indication as to its function” and there was insufficient evidence that the mark “may impart some technical advantage or effect in the domain of 3D puzzles”. In addition, it stated that “since the shape does not obviously embody the form of a puzzle, and the functions and movements that it may be capable of are clearly disguised, it cannot be considered that the shape results from the nature of the goods themselves”.
Luckily for Seven Towns, whose main patent lapsed a few years ago, the mark has been upheld. However as the court stated, “the mark cannot in particular prevent third parties from marketing three-dimensional puzzles that have a shape different from that of a cube or that have the shape of a cube but whose surfaces do not consist of a grid structure… and prevent those puzzles from incorporating or not incorporating a rotating capability”.
Did you know that in the time it’s taken you to read this, the world record ‘speed cubing’ champion could have solved the Rubik’s cube 20 times over — that’s 00.05.55 seconds per completion!