Thursday, 10 November 2016

Rubik's Cube shape trade mark invalid

Rubik's eponymous Cube, surely one of the most well-known and distinctive shapes on the planet, has been deprived of protection - if you believe what you read in the press. Even The Guardian, which in an age of increasingly unreliable journalism has become the source of my regular fix (not being paywalled like the FT, which would otherwise be my preference), has succumbed. In fact the Court of Justice's decision seems like a perfectly good application of the rules that are designed to ensure that trade mark protection does not protect function. The Court of Justice 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.”

You might argue that it leans a little too far in the direction of liberality (that is, excluding shapes from protection), as I think I would - should the internal workings of the article really be taken into account? - but the basic rule is a good one. It is also, I think, relevant to ask whether the shape performs a trade mark function - is it an indication of source or origin, or merely the shape of the object? The argument (mentioned in The Guardian's article) that the rights owners should rely on patent protection is also sound, but as the Cube was invented over 40 years ago this suggestion does little but draw attention to the fact that patent protection might be too short (and an arbitrary 20 year term is sure to be too short for some inventions, too long for others).

Actually, were the patent system to give Ernő Rubik's invention that much protection, it would be failing in its main purpose - to encourage innovation. It works, paradoxically, by giving innovators limited exclusive rights, after which anyone who wants to do so can work the invention. During the lifetime of the patent the inventor can make a lot of money (or, of course, none at all) but once it has gone, it has gone. Others must be free to make their own cubes - the interests of society would not be served if cheap alternatives were not available.

Where the commentators err is in treating the loss of the shape trade mark as a disaster. In fact it is a bit of evergreening too far. The trade mark system should not be used to protect technical shapes: they should be freely available to other manufacturers once patent and design protection has expired. We should all be able to buy alternative cubes. What we cannot do - because a large portfolio of trade marks still ensures this - is buy Rubik's Cubes from any other source. And that is how it should be.

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