Gömböc

Is there a body made of a material with a homogeneous density that has a single stable and a single labile state of equilibrium? This mathematical question was first answered in the affirmative in 2006 by the Hungarian mathematicians Gábor Domokos and Péter Várkonyi with the discovery of a body that has since been known as Gömböc.

In 2019, the ECJ was asked the legal question of whether a three-dimensional sign showing this body could be protected as a trademark.

This was a particularly interesting question in that although the European Union trade mark regulation defines that a sign consisting exclusively of the shape of goods which is necessary to obtain a technical result cannot be registered as a trade mark, precisely that effect cannot be established on the basis of the graphic representation of the shape alone. On the contrary, in order to achieve a technical result, additional information, such as homogeneous density, which is not directly apparent from the sign, is required for that purpose.

Furthermore, the European Union trade mark regulation defines that a sign cannot be registered as a trade mark if it consists exclusively of the shape which gives substantial value to the product. This is also the case with the Gömböc, but here too only if the mathematical peculiarity is known.

With regard to the first question, the ECJ has clarified that, when assessing whether a sign consists only of the shape which is necessary to obtain a technical result, not only the graphic representation must be taken into account but also the perception of the relevant public may be used to identify the essential characteristics of the sign in question. However, in order to assess whether those characteristics perform a technical function, it is necessary to take into account information from an objective and reliable source, which does not include the perception of the relevant public.

Similarly, in order to assess whether the sign corresponds to a shape which gives the product its essential value, the courts are not limited to the sign itself but may also take into account the perception of the relevant public.

However, the ECJ held that the ground for refusal to register a trade mark whose sign corresponds to a shape which gives substantial value to the product cannot be systematically applied to signs which are protected by design or consist exclusively of the shape of a decorative object.

Thus, although the mathematical question referred at the beginning could be answered in the affirmative, the ECJ has now, 14 years later, answered in the negative to the question whether such a body can be protected as a trade mark.

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