The Puzzle of Protection: Rubik’s Cube and Intellectual Property
14 July 2025
7 min read
In 1974, Hungarian inventor Ernő Rubik created one of the most iconic and enduring puzzles of all time: the Rubik’s Cube. As any savvy inventor would, Rubik patented his invention. However, when that patent expired twenty years later, the cube's owners were forced to cling on to other forms of intellectual property (IP) protection—namely trademarks and copyright—to safeguard their valuable product.
Since then, the Rubik’s Cube has been at the center of numerous legal battles concerning its IP status. While solving the cube may take some just a few seconds, untangling the legal complexities surrounding it has taken decades. Intellectual Property Offices and courts have repeatedly been called upon to decide where protection begins and ends.
Most recently, the European Court of Justice addressed this issue in a landmark appeal regarding the annulment of the 3D trademark No. 5696232.
Before we delve into this decision, let’s set the scene and start with some basic principles.
Under Article 4 EUTMR, any sign capable of distinguishing the goods or services of one undertaking from those of another, and capable of being represented clearly and precisely, may be registered as an EU trademark. This broad principle establishes the basis for what can function as a trademark.
However, this general rule is significantly qualified by Article 7 EUTMR, which lays out absolute grounds for refusal or invalidity. One key provision—Article 7(1)(e)(ii) EUTMR—excludes from protection “signs which consist exclusively of the shape, or another characteristic, of goods which is necessary to obtain a technical result.”
This reflects a fundamental policy objective: to prevent trademark law from being used to obtain a potentially perpetual monopoly on functional product features, which are more appropriately protected under patent law, where the protection is limited in time.
While some signs that fall under Article 7(1)(b)–(d) EUTMR(e.g., signs that are non-distinctive or descriptive) may still be registered if they have acquired distinctiveness through use (under Article 7(3) EUTMR), this exception does not apply to marks falling under Article 7(1)(e) EUTMR.
This is critical in the current case. Since Spin Toys Masters' trademark consists exclusively of features necessary to obtain a technical result, acquired distinctiveness cannot save it from invalidation.
HISTORY
In 1999, Seven Towns, the former proprietor of the Rubik’s Cube intellectual property portfolio, filed an application to register a 3D trademark for a Rubik’s Cube in greyscale with the OHIM, now known as the EUIPO.
Almost a decade later, Simba Toys filed an invalidity action against Rubik’s Cube 3D mark, arguing that the rotating functions of the shape are merely technical and that the trademark could therefore not be protected under what’s now Article 7(1)(a), (b), (c) and (e) of the EUTMR. However, at the time, the Cancellation Division of the EUIPO and the EUIPO Board of Appeal did not agree and dismissed the appeal on the basis that the examination of a trademark should not consider any “invisible” features. Unsatisfied with this answer, Simba appealed to the General Court but was unsuccessful once again. The General Court agreed with the Board of Appeal in that the cubed shape did not have a mere technical function and that the rotating capabilities were the mere result of internal mechanics and thus did not constitute a characteristic of the shape as represented in the trademark registration.
After this victory, Rubik’s Brand Ltd.’s former president proudly stated that “Rubik brand can now legally claim protection for any flat sided Cube with equally spaced orthogonal 3x3x3 grid whatever surface decoration within the toy and game category”.
However, these words did not age well. Simba Toys GmbH filed an appeal against the decision of the General Court. The CJEU stated in its decision C-30/15 that the General Court interpreted the criteria for assessing Article 7(1)(e)(ii) of Regulation No 40/94 too narrowly and that it hence wrongfully dismissed the invisible elements of the shape in assessing whether the trade mark involved a technical solution. According to the CJEU, even invisible functional elements must be taken into account when determining the functionality of a shape.
As a result, the case was sent back to the EUIPO which in turn invalidated the registration for the 3D mark in greyscale. However, because this registration was in greyscale, the decision left unresolved the role that the colour of the Rubik’s Cube might play when assessing whether the mark consists exclusively of features necessary to obtain a technical result.
Now, on July 9th 2025, the CJEU offered its judgement regarding a 3D trademark registration for a Rubik’s Cube in colour, filed in2007.
CASE T‑1171/23
In its judgment in Case T‑1171/23, the General Court provided a detailed assessment of the registrability of a coloured three-dimensional mark representing the Rubik’s Cube in light of Article 7(1)(e)(ii) EUTMR.
According to the trademark owner, Spin Toy Masters UK Limited, the EUIPO made (i) an error of assessment in the identification of the essential characteristics of the contested mark, (ii) an error of assessment in the analysis of the functionality of that mark and (iii) an error of assessment relating to ‘jigsaw puzzles’.
Firstly, the Court reaffirmed that the assessment of a sign’s essential characteristics must primarily begin with its graphic representation, but that additional information, including the perception of the relevant public, may also be taken into account. What should not be taken into account however, is the distinctive character, whether inherent or acquired through use, of these essential characteristics.
Spin Master Toys UK Limited sought to argue that Article 7(1)(e)(ii) EUTMR does not apply if other shapes are possible to achieve the technical result intended. The Court, however, reiterated their arguments from the Lego Juris case C‑48/09 P. In this judgement, the Court held that the existence of alternative shapes is not, in itself, sufficient to avoid the application of the exclusion. The Court also reaffirmed that a shape’s aesthetic or imaginative appearance does not preclude it from being considered functional under Article 7(1)(e)(ii) EUTMR. However, where the shape includes a non-functional element—such as a decorative or imaginative feature—that is essential to the mark, Article 7(1)(e)(ii) EUTMR does not apply.
The trademark at issue was the three-dimensional, coloured representation of the cube composed of a grid structure with 3x3 squares on each face, distinguished by six basic colours.
According to the General Court, the essential characteristics included:
the cube shape;
the black grid structure dividing each face into 3x3 squares;
and the differentiation of squares using six colours
The trademark owner knew that, in light of previous decisions by the CJEU, it could not successfully claim that the cube shape, grid and rotating features where non-functional. Consequently, Spin Toy Masters UK Limited tried to focus on the colours displayed in the trademark, as it was this feature that mainly distinguished the trademark registration at issue here with the one at issue in the previous CJEU case.
The main argument of Spin Toy Masters UK Limited was therefore that the specific arrangement of colours should be treated as an essential, non-functional characteristic.
Nevertheless, the Court firmly rejected this claim. Firstly, the General Court noted that the alleged arrangement of colours was unclear. Secondly, the General Court stated that the colours did not constitute an essential characteristic of the trademark at hand. Any six colours or patterns could have the same result. In addition, the colours in question do not significantly contribute to the distinctiveness of the trademark in question.
Instead, what was essential was the contrasting effect produced by the use of six different colours, which allowed each square to be distinguishable. It was thanks to the distinguishable character of the used colours, or any other colour combination for that matter, that the technical result of the puzzle could be attained. The General Court confirmed that the colours play a functional role that is necessary to obtain a technical result. It is only in this sense that the colour differentiation is an essential and functional characteristic.
The Court dismissed arguments based on the existence of alternative surface designs, holding that such possibilities are irrelevant where a causal link exists between the essential characteristic (colour contrast) and the technical result (distinguishability for puzzle-solving purposes).
Similarly, the trademark owner’s arguments concerning the creative process, or the fact that earlier patent applications did not refer to colours, were found ineffective. The specific colour combination and arrangement were not protected by the registration, and therefore did not alter the functionality of the essential colour differentiation.
As the General Court noted, under settled case-law, all essential characteristics in question are merely functional, even the colour features of the mark, to achieve the technical result of dismantling and reassembling the puzzle in its correct form. Consequently, the presence of non-essential, non-functional characteristics does not preclude a finding that a shape is excluded from registration under Article 7(1)(e)(ii) EUTMR.
The General Court also emphasized the importance of how a trademark is classified and how that classification interacts with the type of mark Spin Toy Masters UK Limited seeks to register. In response to Spin Master Toys UK Limited's argument that the EUIPO wrongly applied the refusal to “jigsaw puzzles” in Class 28—on the basis that jigsaw puzzles are inherently two-dimensional—the Court upheld the EUIPO’s broader interpretation. It correctly found that “jigsaw puzzles” can include both 2D and 3D versions, with 3D puzzles being especially relevant in the context of a three-dimensional trademark. This broader understanding justified applying the refusal to the entire category.
CONCLUSION
The General Court upheld the Board of Appeal’s decision, concluding that the contested three-dimensional mark consisted exclusively of a shape whose essential characteristics—namely the cube shape, grid structure, and colour contrast—were functional and necessary to achieve a technical result. Accordingly, the mark was excluded from registration under Article 7(1)(e)(ii) EUTMR.
When comparing this judgment with the judgement of 2016, it is safe to say that the CJEU is consistent in its analysis and adheres to a broad application of Article 7(1)(e)(ii) EUTMR. While the 2016 judgement could not provide any clarity on the role of the colours of the different sides of the Rubik’s Cube as the trademark in question was in greyscale, the General Court now emphasized that these colours can also be considered essential characteristics of the Rubik’s Cube’s shape that are necessary to obtain a technical result.
Although this ruling may initially suggest that imitations of the Rubik’s Cube are now freely marketable, that is not entirely the case. The name and logo of the Rubik’s Cube remain protected as registered trademarks. Furthermore, the Arnhem-Leeuwarden Court of Appeal has recognised that the combination of the cube’s width, colours (red, green, yellow, blue, white, and orange), and the thickness of the grid may benefit from limited copyright protection. In addition, fair competition laws and honest commercial practices continue to offer supplementary protection against blatant copies.
While this decision may appear to close a chapter, it is unlikely to be the end of legal battles over the Rubik’s Cube. Like the ongoing litigation history of Lego, future attempts—perhaps by Spin Master Toys UK Limited or a successor—to obtain protection for the cube's shape cannot be ruled out. This may be the season finale, but it is unlikely to be the end of the series.
If you have any questions about the legal protection of product shapes or the implications of this case, please do not hesitate to contact us at info@dcp-ip.com. We remain at your full disposal for a tailored discussion of your specific case.
