The graphic representation of that cube does not involve a technical solution which would prevent it from being protected as a mark.
At the request of Seven Towns Ltd, a UK company which manages inter alia intellectual property rights relating to the ‘Rubik’s Cube’, the EU’s Trademark Office (OHIM) registered, in 1999, the shape of that cube in respect of “three-dimensional puzzles” as a three-dimensional Community trade mark.
In 2006, Simba Toys GmbH & Co. KG, a German toy manufacturer, applied to OHIM to have the three-dimensional mark cancelled on the ground inter alia that it involves a technical solution consisting of its rotating capability, since such a solution may be protected only by patent and not as a mark. OHIM dismissed its application and Simba Toys therefore brought an action before the General Court for annulment of OHIM’s decision.
In its Judgment in Case T-450/09, Simba Toys GmbH & Co. KG v OHIM, the General Court (Sixth Chamber) dismisses the action brought by Simba Toys.
In the first place, the Court finds that the essential characteristics of the contested mark are, first, the cube per se and, second, the grid structure which appears on each of its surfaces. According to the Court, the bold black lines which form part of that structure and which appear on the three representations of the cube by criss-crossing the inside of those representations are not suggestive of any rotating capability of the individual elements of the cube and therefore do not fulfil any technical function.
The rotating capability of the vertical and horizontal lattices of the Rubik’s Cube does not result either from the black lines or the grid structure, but from an internal mechanism of the cube which is invisible on its graphic representations. Consequently, the registration of the shape of the Rubik’s cube as a Community trade mark cannot be refused on the ground that that shape incorporates a technical function.
In the second place, the Court finds that the mark in question does not allow its proprietor to prohibit third parties from marketing all types of three-dimensional puzzles that have a rotating capability. The Court states that the proprietor’s marketing monopoly is limited to three- dimensional puzzles that have the shape of a cube the surfaces of which bear a grid structure.
In the third place, the Court finds that the cubic grid structure of the mark in question differs considerably from the representations of other three-dimensional puzzles available on the market. That structure therefore has distinctive character which enables consumers to identify the producer of the goods in respect of which the mark is registered.
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