With decision of 20 October 2023 (case r 850/2022-1), the first Board of Appeals of the European Union Intellectual Property Office (EUIPO) confirmed the decision of the Cancellation Division, establishing the invalidity of the three-dimensional trademark constituted by the famous Rubik’s Cube.
The first decision of the EUIPO Cancellation Division
The “magic cube”, invented in 1974 by Hungarian architecture professor and sculptor Ernő Rubik, was registered as a color 3D trademark in 2008, for class 28 related to “games, toys, three-dimensional toys and puzzles, electronics toys, portable electronic games” and, following the filing of an invalidity application, it was declared invalid in 2022, on the basis of what provided for in the current art. 7(1)(e)(ii) of EU Regulation no. 207/2009.
As a matter of fact, the article under exam establishes that those signs constituted exclusively by the shape necessary to obtain a technical result cannot be registered as EU trademarks. The logic at the basis of this article is to prevent a certain enterprise from having the monopoly on the technical solutions or functional features of a product, thus indefinitely perpetuating an exclusive right on such types of solutions, that would have, on the contrary, a limited duration in time.
Such norm aims at creating a fair and equal competition system.
The decision following the Appeal
Following the appeal presented by the owner of the contested trademark, the Board set out to identify three essential characteristics of the sign at issue:
- Cube shape
- A black grid on each face of the cube, composed by cubies disposed in 3×3 rows
- Six different colors of the cubies on each face of the cube: red, green, blue, orange, yellow and white
The Board, on this matter, recalled some previous decisions issued by the EUIPO and the Court of the European Union that had as topic the application for registration of shapes equivalent to the Rubik’s Cube.
In line with these decisions, the same concluded that the shape of the cube and the grid structure are both necessary to obtain a technical result, consisting of a “game consisting in the completion of a three-dimensional color puzzle in the shape of a cube by generating six faces of different color. Such goal is achieved through the vertical and horizontal axial rotation of smaller color cubes, until the nine squares of each side of the cube show the same color”. It was thus clear, that the shape of the product and the particular grid disposition were essential to solve the puzzle and to obtain the desired result.
For what concerns the colors, the Board reach the same result, stating that the different colors of the cube are essential to obtain the technical result, that is to match the same color on each face of the cube. The cube, as a matter of fact, would not work as a three-dimensional puzzle if all six faces had the same color.
On the basis of such assessments, therefore, the Board of Appeal confirmed the decision of the Cancellation Division, declaring the invalidity of the registered three-dimensional trademark no. 5696232 and constituted by the shape of the Rubik’s Cube.
Tania Giampieri