Curia press release: “[…] As regards the analysis of the functionality of the essential characteristics of the mark at issue, the General Court considers, like EUIPO, that the essential characteristic consisting of the black lines which intersect, horizontally and vertically, on each of the faces of the cube, dividing each of them into nine small cubes of equal size divided into rows of 3 x 3, is necessary to obtain the intended technical result.
Those black lines actually represent a physical separation between the different small cubes, allowing a player to rotate each row of small cubes independently of each other in order to gather those small cubes, in the desired colour scheme, on the cube’s six faces. Such a physical separation is necessary to rotate, vertically and horizontally, the different rows of small cubes by means of a mechanism located in the centre of the cube. Without such a physical separation, the cube would be nothing more than a solid block in which none of the individual elements could move independently of the others.
As regards the essential characteristic consisting of the overall cube shape, the General Court considers, like EUIPO, that the cube shape is inseparable, on the one hand, from the grid structure, which consists of the black lines that intersect on each of the faces of the cube and divide each of them into nine small cubes of equal size divided into rows of 3 x 3, and, on the other, from the function of the actual product at issue, which is to rotate, horizontally and vertically, the rows of small cubes. In the light of those factors, the shape of the product is necessarily that of a cube, that is, a regular hexahedron.
In those circumstances, the General Court concludes that, although the differences in the colours on the six faces of the cube do not constitute an essential characteristic of the mark at issue, the two characteristics of that mark which have been correctly identified as essential by EUIPO are necessary to obtain the intended result of the product represented by the cube shape at issue, with the result that that shape could not be registered as an EU trade mark. Therefore, the General Court upholds the contested decision and dismisses the action brought by Rubik’s Brand."
Full press release here.