Article summary

IP analysis: The EU General Court has dismissed an appeal against a decision of the First Board of Appeal of the EUIPO in the latest blow to the attempts by the proprietor of the Rubik’s Cube to maintain trade mark protection for a three-dimensional sign representing aspects of its well-known puzzle. The challenge to the mark by Simba Toys GmbH & Co, KG, pursuant to Article 7(1)(e)(ii) of Regulation (EC) 40/94, was referred back to the Board of Appeal following a decision of the Court of Justice in 2016, which made it clear that the essential characteristics of the cubic shape in issue must be assessed in the light of the technical function of the actual goods represented and that the General Court ought to have defined the technical function of the product concerned and have taken this into account in its examination. The Board of Appeal annulled the original decision of the Cancellation Division and declared the contested mark invalid in respect of the goods for which it had been registered, on the basis that it had been registered in breach of Article 7(1)(e)(ii). The General Court has now dismissed an appeal against that decision, concluding, among other things, that given that the two characteristics of the contested mark which had been correctly identified as essential by the Board of Appeal were necessary to obtain the intended technical result of the goods concerned, it must fall within the prohibition set out in Article 7(1)(e)(ii) of Regulation (EC) 40/94. Sign in or take a trial to read the full analysis.