The Rubik’s Cube ruling: a turning point for 3D trademarks and IP strategy in the toy sector

The EU General Court’s recent decision in Spin Master Toys UK v. EUIPO – Verdes Innovations (Cases T-1170/23 to T-1173/23) is the latest twist in the long-running saga regarding three-dimensional (3D) trademarks. The decision offers technical intrigue and points for future consideration in filing 3D applications.

Background and legal foundations of the decision

The Rubik’s Cube toy is certainly iconic and recognisable around the world for over 50 years, since its invention in 1974.

At the heart of this dispute was the registrability of several 3D EU trademarks representing features of the Rubik’s Cube. The marks, originally registered between 2008 and 2012, were challenged by Verdes Innovations SA on the grounds that the Cube’s shape was functional and therefore ineligible for trademark protection under Article 7(1)(e)(ii) of Regulation 2017/1001.

The General Court upheld the EUIPO’s decision to annul the registrations, concluding that the Cube’s essential characteristics, its overall shape and grid structure, were necessary to achieve a technical result. Specifically, the Court found that:

• The cube shape facilitates axial rotation, a core function of the puzzle.
• The grid structure, formed by black lines dividing each face into smaller squares, enables independent movement of rows and columns.

Interestingly, the Court rejected the EUIPO’s earlier assessment that the color differences on the Cube’s faces were essential characteristics, noting that the trademark representation did not clearly depict color variation. Nonetheless, this did not alter the outcome: the remaining features were deemed sufficient to uphold the original decision.

The Court reaffirmed that trademark law must not grant perpetual monopolies over technical solutions, which are more appropriately protected by patents, which confirms the precedent set in Simba Toys v. EUIPO (C-30/15 P), where the Court of Justice held that non-visible functional elements must be considered when assessing 3D marks.

Commercial consequences for toy firms

For Spin Master, which acquired the Rubik’s Cube IP portfolio for $50 million in 2021, the ruling represents a material setback. The loss of shape-based trademark protection weakens the brand’s IP rights in the EU and opens the door to competitors. While copyright may still offer some secondary protection, the absence of trademark coverage for the Cube’s shape dilutes the portfolio’s defensive strength.

More broadly, the decision is a signal to toy companies who own iconic product shapes: functionality trumps distinctiveness in the eyes of EU trademark law. Whilst patents and registered designs are fantastic options to protect technical functions and aesthetic value of products, these only have a limited timespan for exclusive protection.

Strategic insights for trademark attorneys

For practitioners advising clients in the toy and consumer goods sectors, several key takeaways emerge:

• Understand the registrability of 3D marks and consider whether the value of a product rests predominantly within technical aspects.
• Trademarking is not a back door to patent-like protection if features are technical.
• Consider thoroughly how a 3D application is going to be represented. Think about how best to clearly indicate the elements of protection in a new 3D application.
• Be prepared for the long haul. If a product achieves notoriety, competitors will automatically try to profit from the idea. Enforcement is as important as acquiring trademark rights.
• Advise on the registrability of existing registrations when conducting due diligence for clients.

Conclusion

To solve a Rubik’s Cube, it is important to remember that the color orientation is extremely important, namely: white needs to be opposite yellow, blue opposite green, and orange opposite red. However, to solve this trademark issue, I believe Spin Master will have no option other than to escalate the dispute to the European Court of Justice and should focus on the distinctiveness of color variations as a point of dispute.

I sympathise with the decision, given the iconic status of the puzzle. But for toy firms, like Spin Master and famously Lego before them, the message is clear: the ability for firms to register trademarks that can provide indefinite trademark rights needs to be justified in the eyes of trademark law.

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