The games industry is anything but a world of Bisounours, as demonstrated by the recent trademark battle before the Court of Justice of the European Union between the UK's Seven Towers, holder of the intellectual property rights to the Rubik's Cube, and Germany's Simba Toys: at the heart of the offensive was the registration by the former, not of the Rubik's Cube trademark - that was done a long time ago - but of the shape of the Rubik's Cube as a Union trademark.
After failing at first instance to have the deposit cancelled, Simba Toys won its appeal.
I'll spare you all the recitals of the judgement, which only lawyers would be able to appreciate at their true value, just to raise the question of the scope of trade marks: how does the square shape of a 3-dimensional jigsaw puzzle constitute a trade mark?
Couldn't Renault, in its day, have registered the distinctive shape of its Espace, or Apple, that of its new touch-screen phone? Only to prevent potential competitors from entering the market.
From a marketing point of view, a brand is a semiotic sign: it designates a product - or a series of products, or their manufacturer; in this sense, Rubik's Cube refers to a particular cube-shaped puzzle, and Renault, to a car manufacturer.
This is what Georges Péninou in Intelligence de la publicité called the referential function, and Roland Barthes spoke of a purely denotative sign, in much the same way as the word 'dove' evokes a particular bird.
But the dove is much more than a bird: it's also peace. Words and semiotic signs can be loaded with many other values, enriching language in the process: Barthes speaks of a connotative message.
Brands are no exception to this analysis: Renault, BMW or Ferrari evoke much more than just cars, and Apple, computers or mobile phones: all these brands are imbued with values, both objective and subjective, that make us prefer them to others.
While for a legal expert, the dispute between Rubik's Cube and Simba Toys may seem fascinating - the financial stakes behind this lawsuit are obviously not negligible, since it involves blocking the market to new entrants - for a marketer, it is incomprehensible: at best, the square shape of Rubik's Cube would never be anything more than a basic, purely denotative and vaguely tautological sign... never a brand rich in connotations.
Short of crossing out the term Rubik's Cube and transforming the product's three-dimensional image into a purely iconic logo like Nike's, this was clearly not the aim of Seven Towers.
