The ground for the decision of the Court was that “the grid structure of the cube does not constitute a decorative and imaginative element but performs a technical function since it divides the movable elements of the puzzle, in particular so that they are rotatable”. This is exactly the opposite of the motivations that led the EUIPO to grant the Rubik’s Cube EU three-dimensional trademark to its owners.
In fact, the EUIPO previous decision to register the mark based on the consideration that a graphical representation of the cube did not include a technical solution, thus it could be protected as a trade mark and not as a patent. You can see more in our previous article, here (in Italian).
According to the Article 4 of the Regulation n. 40/94 (now n. 207/2009) the European trade mark can correspond to the shape of a product. Nevertheless the Article 7 (1) (e), (ii) of the Regulation 40/94 states that in case the technical result is strictly linked to the shape of the product, the trade mark cannot be registered if represents exclusively the shape.
Basing on the European Court of Justice decision, the Rubik’s Cube 3D trademark application ought to be refused by the EUPO on the ground that the shape involved a technical solution. So the non-visible functional elements represented by that shape (the rotating capability) ought to be considered.
After the LEGO bricks case it is the second similar one in the toys industry and it might have some important implications for the players that could reconsider their intellectual property strategies. According to some legal commentators, this decision “could pave the way for an increase in knock-offs and counterfeits on the market”.