Important victory for IQ Games and a significant decision on the limits of 3D trademark protection in the European Union

Important Victory for Competition and the Proper Scope of 3D Trademark Protection

Cosmovici Intellectual Property is pleased to announce significant success before the EUIPO Board of Appeal, which dismissed in its entirety the appeal filed by Rosian Express SRL against our client, IQ Games SRL.

The dispute concerned two Romanian three-dimensional trademark registrations owned by Rosian Express, both representing the rectangular shape of a traditional rummy game box. One registration covered games in Class 28, while the second covered toy boxes and storage boxes in Class 20.

For several years, Rosian Express sought to rely on these registrations to prevent competitors from using similar rectangular rummy game packaging. The company also initiated infringement proceedings against IQ Games in Romania. While the claims relating to the Class 28 goods have already been definitively rejected by the Romanian courts, the proceedings concerning the Class 20 registration remain pending.

At the same time, IQ Games sought protection at EU level for its own three-dimensional packaging, incorporating a number of distinctive elements identifying the commercial origin of its products.

EUIPO Proceedings

Rosian opposed the EU trademark application filed by IQ Games, relying on its Romanian registrations. During the opposition proceedings, IQ Games successfully requested proof of use of the earlier marks. Although Rosian submitted extensive evidence, the EUIPO Opposition Division concluded that the evidence failed to demonstrate that the earlier 3D signs were used as trademarks, namely as indicators of commercial origin. The opposition was therefore rejected. Rosian subsequently appealed. The Board of Appeal has now upheld the rejection and dismissed the appeal in its entirety.

Key Findings of the Board of Appeal

The Board confirmed that the rectangular shape relied upon by Rosian corresponds to a common presentation of rummy games and possesses only a limited degree of distinctiveness.

The Board expressly recognised that the elements attracting consumers’ attention and indicating commercial origin are the distinctive features incorporated into IQ Games’ packaging, including the conspicuous red wording ‘REMI Clasic’, the distinctive ‘DEICO GAMES’ designation, the figurative rocking-horse device, the black sleeve design, and the depiction of racks and numbered tiles.

Particularly noteworthy is that the Board did not limit its analysis to the evidence originally submitted during the opposition proceedings. Rosian attempted to strengthen its case on appeal by filing a consumer survey and multiple declarations from distributors and business partners. After examining this additional evidence, the Board nevertheless concluded that it did not establish that the rectangular box shape functioned as an indicator of commercial origin.

In doing so, the Board reaffirmed the distinction between recognition of a product and recognition of a trademark. Familiarity with a product, even if longstanding and widespread, does not automatically demonstrate that consumers perceive a product shape as a source identifier.

Why This Decision Matters

Trademark protection cannot be used to obtain exclusive rights over commonplace product shapes unless those shapes genuinely function as indicators of commercial origin. Businesses remain free to market traditional products using standard packaging formats, provided that they do not copy the distinctive branding elements that identify a competitor’s products.

For IQ Games, the decision confirms that its EU trademark application may proceed and that the company is entitled to market its rummy games in the traditional rectangular format while relying on its own distinctive branding elements to identify the commercial source of its products.

A Decision Beyond the Rummy Market

Although the dispute arose in the context of traditional rummy games, the significance of the decision extends far beyond this particular market.

The case addresses an increasingly common issue in trademark law: attempts to obtain exclusive rights over product shapes that are customary, functional, or commonly used within a particular industry.

The Board of Appeal confirmed that trademark protection must remain focused on signs that genuinely indicate commercial origin and cannot be extended to prevent competitors from using ordinary product configurations that consumers expect to find on the market.

For manufacturers and brand owners, the decision serves as an important reminder that market success and product recognition do not automatically translate into trademark rights over the product’s shape itself. Protection is available for distinctive branding elements that identify origin, but not for standard product presentations that competitors must remain free to use.

The Team Behind the Case

The successful outcome was achieved through the coordinated work of Cosmovici Intellectual Property’s trademark and litigation teams, under the supervision of Paul Cosmovici, Managing Partner of the firm.

The EUIPO strategy was led by Emanuel Ailenei, from the initial recommendation to seek EU trademark protection for IQ Games’ distinctive 3D packaging, through the opposition proceedings and up to the successful defence before the Board of Appeal. His work included the proof-of-use strategy, the analysis of Rosian’s earlier three-dimensional marks, and the response to the additional evidence submitted on appeal.

The related Romanian litigation, including the counterfeit and infringement proceedings initiated by Rosian, has been handled by Emanuel Ailenei and Liviu Boghean, also under the coordination of Paul Cosmovici.

What Happens Next?

The Board of Appeal’s decision represents a significant victory for IQ Games and an important confirmation of the limits of trademark protection for commonplace product shapes. Rosian may still challenge the decision before the General Court of the European Union within the applicable deadline, and the Romanian proceedings concerning the Class 20 registration remain pending.

However, the Board’s reasoning is comprehensive and firmly grounded in established EU trademark law. It addresses the distinctive character of the earlier three-dimensional marks, the evidentiary value of market surveys and declarations, and the absence of likelihood of confusion between the signs.

For IQ Games, the decision is an important step toward securing EU-wide protection for its own distinctive packaging and branding. For the market more broadly, it confirms a fundamental principle: trademark law protects signs that identify commercial origin, not ordinary product shapes that competitors must remain free to use.

Although the dispute has not yet reached its final chapter, the strength of the Board’s reasoning provides a solid foundation for maintaining the outcome achieved by IQ Games in any future proceedings.

We are proud to have assisted IQ Games in securing this important result and remain confident that the conclusions reached by the Board will withstand any further scrutiny.

https://euipo.europa.eu/eSearch/#details/trademarks/018874189