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Most of us have some sort of relation to the famous three-dimensional puzzle, the Rubik’s Cube, which exploded in the market in the early 80’s. It was registered as a three-dimensional trade mark at EUIPO in 1999 with the following shape:

The possible problem with registration was that most of its essential characteristics arguably could be considered necessary for the product’s technical function, and that the product’s shape therefore, under EU trade market law, could not be given protection as EU trade mark. However, following a complaint in 2006, the General Court held that the function did not originate from the trade mark’s essential characteristics, but from an “invisible mechanism” internal to the cube. Following the appeal, the Court of Justice annulled the decision and referred the case back to EUIPO for reassessment. In its new decision in 2017, EUIPO identified three characteristics which it deemed to be essential for the trade mark; the colours of the cube, the black lines dividing the cube into smaller cubes, and the overall cube shape. EUIPO found the characteristics to be necessary for obtaining a technical result, and therefore cancelled the registration.

The EUIPO decision was challenged before the General Court where a judgment was reached last Thursday (October 24th). The court came to the conclusion that the colours of the cube could not be deemed an essential characteristic, partly because Rubik’s Brand had never claimed the presence of colours to be important for its registration, and partly because, from a simple visual analysis of the graphic representation (see image above), it was not possible to discern with sufficient precision the existence of differences in the colours of the cube. In examining the black lines which divided the cube into smaller cubes, the court held that, since the lines represented the physical separation of the cubes, making it possible to rotate each row separately, they were necessary in order to reach the intended technical result. The last characteristic identified as essential by EUIPO was the overall cube shape. Here, the court agreed with EUIPO and concluded that the shape was inseparable from the grid structure and the function of the product, meaning that the product could not be shaped in any different form than a cube.
Seeing that the two essential characteristics of the trade mark were necessary for obtaining the intended result of the product, the court upheld the EUIPO decision to cancel the registration of the Rubik’s Cube as EU trade mark.

The full ruling can be found here.

Time Advokatbyrå continuously provides advice within the field of copyright and intellectual property. If you would like to know more or need legal assistance with intellectual property issues, please reach out to our partner Fredrik Ståhl, Head of Intellectual Property.