In its 10 November judgement, the CJEU set aside the decision of the General Court of the EU and annulled a EU Intellectual Property Office (EUIPO) decision that confirmed the Rubik’s Cube shape as viable for trademark registration.
The question of whether the shape could qualify as a trademark arose in 2006 when Simba Toys applied to the EUIPO to have the trademark cancelled on the grounds that it involved a technical solution in its rotating capacity and could only be protected by a patent, not a trademark.
The General Court dismissed this, arguing that the technical solution that characterised the Rubik’s Cube was internal and did not result from the shape.
But the CJEU disagreed: “In examining whether registration ought to be refused on the ground that that shape involved a technical solution, the EUIPO and the General Court should also have taken into account non-visible functional elements represented by that shape, such as its rotating capability.”
Further, it said that the “essential characteristics of the cubic shape in issue must be assessed in light of the technical function of the actual goods represented”.
“In those circumstances, the court sets aside the judgement of the General Court and annuls the EUIPO decision which confirmed registration of the shape in question as an EU trademark. It will be a matter for the EUIPO to adopt a new decision taking into account the findings set out by the court in the present judgement.”