On the 25th of November 2014 the General Court rejected the contention that the three dimensional graphic design of a ‘Rubik’s’ Cube is not a valid trade mark. Simba toys, who originally challenged the trade mark in front of OHIM in 2006, argued that the trade mark involves a technical solution and that the mark was devoid of distinctive character. Both OHIM and the Board of Appeal rejected the argument, which the applicant based on Articles 7(1)(a)-(c) and 7(1)(e) of the Community Trade Mark Regulation.
The General Court upheld the Board of Appeal’s decision, rejecting the application for cancellation of the CTM. The Court found that the mark was considerably different from other three dimensional puzzles on the market and has distinctive character. The General Court also rejected the argument that the sign consisted exclusively of the shape of the goods being necessary to obtain a technical result. They found that the rotating capability of the cube does not result from the black grid structure, but from an internal mechanism which is invisible and therefore cannot constitute an essential characteristic of the mark. The registration of the trade mark was upheld as valid.
The Court clarified that it is the cube shape divided into a grid structure by black lines that is protected as a Community Trade Mark and that third parties are not precluded from marketing all other types of three dimensional puzzles that have a rotating capacity.