Puzzle solved: “Rubik’s Cube” shape is registrable as a trade mark

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The EU General Court has upheld the registration of the shape of the “Rubik’s Cube” as a trade mark [1].

The mark had been the subject of invalidity proceedings. The applicant for invalidity relied on Article 7(1)(e)(ii) of the Community Trade Marks Regulation [2]. Under Article 7(1)(e)(ii), a mark that consists exclusively of the shape of the goods which is necessary to obtain a technical result is not capable of registration.

The General Court considered whether the essential characteristics of the mark all performed the technical function of the goods and found that they did not. In particular, it explained that it was necessary to show that the essential characteristics of the mark themselves performed the technical function, not that they were the result of that function and that, in this instance, the visible separating black lines between the surfaces of the cube were not performing a technical function. Instead, the rotating capability of the cube arose from an internal mechanism, which was not visible in the graphic representation of the mark. It was possible for a cube whose surfaces were rotatable not to contain the visible separating black lines, which are a feature of the Rubik’s Cube.

The applicant for invalidity also relied on Article 7(1)(b) of the Community Trade Marks Regulation, which precludes from registration a mark that is devoid of any distinctive character. The General Court rejected the applicant’s argument that the cubic grid structure of the mark was the norm for three-dimensional puzzles, nor would the shape of the mark be perceived by the average consumer as representing a three-dimensional puzzle, without prior knowledge of its purpose. The Court also considered that the mark contained sufficient characteristics, notably the grid structure and the appearance of a “black cage”, to be regarded as inherently distinctive. Accordingly, the mark was upheld.

The case is a useful illustration of the issues that may arise on applications for invalidity of three-dimensional shape marks, and, in particular, the technical function argument under Article 7(1)(e)(ii). The technical function must be apparent from the representation of the trade mark or from what can be clearly inferred from the representation.

[1] Case T-450/09
[2] Regulation 207/2009/EC