Judgment of the General Court (Eighth Chamber) of 24 October 2019.Rubiks Brand Ltd v European Union Intellectual Property Office.EU trade mark — Invalidity proceedings — Three-dimensional EU trade mark — Shape of a cube with surfaces having a grid structure — Absolute ground for refusal — Article 7(1)(e)(ii) of Regulation No 40/94 (now Article 7(1)(e)(ii) of Regulation 2017/1001) — Sign consisting exclusively of the shape of goods necessary to obtain a technical result — Article 76(1) of Regulation (EC) No 207/2009 (now Article 95(1) of Regulation 2017/1001) — Second sentence of Article 75(1) of Regulation No 207/2009 (now the second sentence of Article 94(1) of Regulation 2017/1001) — Article 65(6) of Regulation No 207/2009 (now Article 72(6) of Regulation 2017/1001).Case T-601/17.

Judgment of the General Court (Eighth Chamber) of 24 October 2019 –Rubik’s Brand v EUIPO — Simba Toys (Shape of a cube with surfaces having a grid structure)

(Case T‑601/17)

(EU trade mark — Invalidity proceedings — Three-dimensional EU trade mark — Shape of a cube with surfaces having a grid structure — Absolute ground for refusal — Article 7(1) (e) (ii) of Regulation No 40/94 (now Article 7(1) (e) (ii) of Regulation 2017/1001) — Sign consisting exclusively of the shape of goods necessary to obtain a technical result — Article 76(1) of Regulation (EC) No 207/2009 (now Article 95 (1) of Regulation 2017/1001) — Second sentence of Article 75(1) of Regulation No 207/2009 (now the second sentence of Article 94 (1) of Regulation 2017/1001) — Article 65(6) of Regulation No 207/2009 (now Article 72 (6) of Regulation 2017/1001))

1. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Signs which consist exclusively of the shape of goods necessary to obtain a technical result — Concept — Interpretation in the light of the public interest underlying each of them

(Council Regulation No 40/94, Art. 7(1)(e)(ii))

(see paras 43-45)

2. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Signs which consist exclusively of the shape of goods necessary to obtain a technical result — Concept — Existence of other shapes allowing the same technical result to be obtained — Not relevant to the ground for refusal

(Council Regulation No 40/94, Art. 7(1)(e)(ii))

(see para. 46)

3. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Signs which consist exclusively of the shape of goods necessary to obtain a technical result — Identification of the essential characteristics of a three-dimensional sign

(Council Regulation No 40/94, Art. 7(1)(e)(ii))

(see paras 47-49)

4. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Signs which consist exclusively of the shape of goods necessary to obtain a technical result — Assessment of the essential characteristics in the light of the technical function of the goods

(Council Regulation No 40/94, Art. 7(1)(e)(ii))

(see paras 50-52)

5. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Signs which consist exclusively of the shape of goods necessary to obtain a technical result — Shape of a cube with surfaces having a grid structure

(Council Regulation No 40/94, Art. 7(1)(e)(ii))

(see paras 70, 81, 84, 85, 90-93, 97-99)

6. EU trade mark — Procedural provisions — Examination of the facts of EUIPO’s own motion — Invalidity proceedings concerning absolute grounds for refusal — Examination restricted to the facts, evidence and arguments provided — Well-known facts taken into account

(Council Regulation No 207/2009, Art. 76(1))

(see para. 82)

Re:

Action brought against the decision of the First Board of Appeal of EUIPO of 19 June 2017 (Case R 452/2017-1) relating to invalidity proceedings between Simba Toys and Rubik’s Brand.

Operative part

The Court:

1. Dismisses the action;

2. Orders Rubik’s Brand Ltd to pay the costs.