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ECJ: Rubik's Cube cannot be protected as a 3D mark

This post is also available in: Deutsch

What is it all about?

At the request of Seven Towns, a British company which, inter alia, manages the intellectual property rights in the ‘Rubik’s cube’, the European Union Intellectual Property Office (EUIPO) in 1999 carried the following cube form as a three-dimensional EU mark for ‘ three-dimensional puzzles”:

In 2006, Simba Toys, a German toy manufacturer, applied to EUIPO for
Annulment of that three-dimensional mark, inter alia, on the ground that it contains a technical solution consisting of its rotability and that such a solution can only be protected by a patent and not as a trade mark.

EUIPO rejected the application and Simba Toys brought an action before the General Court of the European Union seeking annulment of the EUIPO decision.

First instance

By judgment of 25 November 2014, the General Court dismissed Simba Toys’ action
reasoning that the type of cube in question does not contain a technical solution which prevents the protection of that form as a trade mark. In particular, the Court took the view that the technical solution characteristic of the Rubik’s Cube did not arise from the characteristics of that shape, but at most from an invisible mechanism in the interior of the cube.

Simba toys appealed against the judgment of the General Court to the Court of Justice. By judgment of 10 November 2016, the Court of First Instance annulled both the judgment of the General Court and the decision of EUIPO. In its judgment, the Court held, inter alia, that EUIPO and the General Court, in order to determine whether registration should have been refused because the type of cube at issue contained a technical solution, also included invisible functional elements of the functional elements of the form represented goods, such as their rotability.

And back again

In response to the Court’s ruling, EUIPO had to adopt a new decision which takes account of the Findings of the Court of Justice. By decision of 19 June 2017, EUIPO found that the representation of the shape of the cube at issue had three essential features, namely the shape of the cube as a whole, the black lines and small squares on each side of the cube and the different Colors on the six sides of the cube. Each of those essential features is necessary to achieve a technical effect which arises from the fact that rows of smaller cubes of different colours, forming a larger cube, are rotated vertically and horizontally around an axis until: the nine squares of each side of this cube would have the same color. Since the EU trade mark regulation does not allow the registration of a form the essential characteristics of which are necessary for the attainment of a technical effect, EUIPO found that the mark at issue had been registered in breach of that regulation, and therefore deleted their registration.

Rubik’s Brand Ltd, which currently owns the trade mark at issue, challenged this EUIPO decision before the ECJ.

What does the ECJ say again?

In its judgment, the ECJ considers, first of all, that the EUIPO decision is vitiated by an error of assessment in so far as EUIPO has found that the different colours on the six sides of the cube are an essential feature of the mark at issue. Be. First, Rubik’s Brand has never claimed that the possible colouring of each side of the cube plays an important role for it in connection with the registration of the mark at issue, and, on the other hand, a mere visual analysis of the graphic Representation of this mark does not clearly recognize that the six sides of the cube have different colors.

The General Court also upholds the definition of technical effect contained in the contested decision. In that context, the General Court finds that the type of cube at issue represents the appearance of the specific product for which registration was sought, namely the three-dimensional jigsaw puzzle known as ‘Rubik’s cube’. This commodity is a game whose goal is to restore a colored three-dimensional puzzle in the form of a cube of six sides of different color. This goal is achieved by turning rows of smaller cubes of different colors, which are part of a larger cube, vertically and horizontally around an axis until the nine squares of each side of that cube have the same color.

As regards the assessment of the functionality of the essential features of the mark at issue, the General Court, like EUIPO, considers that the essential feature, which consists in the black lines which intersect horizontally and vertically on each side of the cube and each of these sides is thus divided into nine small cubes of the same size, arranged in three rows of three each, is necessary to achieve the desired technical effect.

These black lines represent a physical separation between the various small cubes, which allow the player to rotate each row of small dice independently of each other, in order to place these small cubes in the desired color combination on the six pages of the cube. Such a physical separation is necessary in order to be able to rotate the different rows of small cubes vertically and horizontally using a mechanism inside the cube. Without such a physical separation, the cube would be nothing more than a fixed block that would not contain a single element that could be moved independently.

As regards the essential feature of the shape of the cube as a whole, the General Court agrees with the
EUIPO’s view that the shape of the cube is inseparable from, on the one hand, the grid structure, which consists of black lines that intersect on each side of the cube and divide each side into nine small cubes of the same size, divided into three rows of three and, on the other hand, the function of the concrete commodity, which consists in the series of small cubes being rotated horizontally and vertically. In the light of those elements, the shape of the product may be only that of a cube, that is to say, a regular hexahedron.

In conclusion, therefore,

Therefore, the General Court concludes that, although the different colours on the six sides of the cube do not constitute an essential feature of the mark at issue, the two features of that mark, which EUIPO rightly classifies as essential, are in order to achieve the with the effect sought by the product represented by the type of cube in question, and that form should therefore not have been registered as an EU trade mark. Consequently, the General Court upholds the contested decision and dismisses the action brought by Rubik’s Brand.

Marian Härtel

Marian Härtel

Marian Härtel is a lawyer and entrepreneur specializing in copyright law, competition law and IT/IP law, with a focus on games, esports, media and blockchain.


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