adventures in cubing

For once my hobby intersects with my day job. (Yes, I’m a laywer. Not an IP lawyer per se, but I certainly deal with IP issues and work with a handful of really great IP lawyers.) Seven Towns is the exclusive licensee of IP associated with the Rubik’s Cube. That gives them the ability to enforce their IP rights as though they’re the actual owner of the IP. Although I can’t find the primary source, it seems that Seven Towns recently complained to Dayan (a leading manufacturer of competing speed cubes) that Dayan’s cubes infringe copyrights held in the original Rubik’s Cube. (See here and here and here.) The legal premise appears to be that a copyright exists in the original Rubik’s Cube’s color combination of (a) the white face opposite the yellow face, (b) blue opposite green, and (c) red opposite orange.

<EDIT>It actually appears that the claims are more likely based in trademark/trade dress, based on registered trademarks such as these, which describe the mark as:

THE MARK CONSISTS OF A BLACK CUBE HAVING NINE COLOR PATCHES ON EACH OF ITS SIX FACES WITH THE COLOR PATCHES ON EACH FACE BEING THE SAME AND CONSISTS OF THE COLORS RED, WHITE, BLUE, GREEN, YELLOW, AND ORANGE. THE DRAWING IS LINED FOR THE COLORS.

The “drawing is lined” language appears to refer to the sketches with shading for each color. In other words, it appears that the marks are self-limited not just to a black cube and the six colors, but those six colors arranged in the particular configuration with which we are familiar.</EDIT>

My thinking on this whole question has gone through a bit of an evolution. Although Seven Towns’ claims initially struck me as quite a stretch, those registered marks (still live and valid, apparently) and the below from the the Rubik’s site tilted my view a bit:

The RUBIK’S CUBE® in its three dimensional form and any graphic or photographic representation of it, in any configuration, coloured or uncoloured, whether it carries the RUBIK’S CUBE® name or logo, is protected by intellectual property laws throughout the world.

The “in its three dimensional form” part grabbed my attention. You can register a copyright on a three-dimensional work of art based on its appearance, which includes, of course, its colors. Besides the trademarks related to color, I suppose that Seven Towns would take the position that, while they can’t copyright a cube itself, and probably can’t copyright a cube constructed of 26 cubies, you can copyright a cube with 26 cubies comprising faces of a particular color combination. Maybe....

Getting back to trademark, though, it occurred to me that Seven Towns’ best argument likely would be one based on “secondary meaning,” a trade dress concept that is an extension of trademark law. In fact, some Googling revealed that a federal court long ago found (as affirmed by the Second Circuit) that Rubik’s Cubes had acquired secondary meaning. 685 F.2d 78 (2d Cir. 1982). In other words, upon seeing something looking like a Rubik’s Cube, the public would identify not just the product itself (as a generic), but also would “identify the source [i.e., the manufacturer] of the product.” That probably was true in 1982.

As my thoughts evolved further, though, I began to compose the argument for Dayan: I’d argue that the subsequent proliferation of other 3×3 cubes sharing the same color scheme and overall appearance of a Rubik’s cube has diluted whatever secondary meaning might have previously existed. In other words, although the public in 1982 would see a Rubik’s cube and immediately say “Rubik’s Cube,” the public today is more likely to say “3×3 cube.” Or, more specifically, they may say “Rubik’s Cube,” but mean simply “a cube that turns like that one I had when I was a kid.” Much the way we say Kleenex (not tissue), Band Aid (not bandage), Xerox (not copy), Jello (not gellatin), Q-Tip (not cotton swab), etc., without referring to a specific brand/manufacturer. Indeed, searching for “rubik’s cube” on Amazon, brings up literally dozens of Rubik’s-style 3×3 cubes that are NOT the Rubik’s Cube. Scores of sites catering to cubing enthusiasts distribute Rubik’s-style cubes supplied by at least a half-dozen manufacturers. IP attorneys refer to this phenomenon as a sort of erosion of rights or, more colorfully, genericide. And genericization can destroy soft IP rights.

At the end of the day, I would say that Seven Towns’ rights are thin at best. Seven Towns would do better, I think, to leverage its stronger trademark — the Rubik’s name itself! — and innovating. Alternative cubes are outcompeting (or at least starting to compete with) Rubik’s-branded cubes not because they’re leveraging a color scheme but because they present dramatic functional — the province of patent law — improvements over the Rubik’s design. Out of the box, these alternative speed cubes corner cut amazingly, suffer very few lockups, and rarely pop. This is just the sort of evolution and improvement contemplated by the limited length of patent rights, and bodes well for the cubing community. If Seven Towns is interested in the speedcubing market, there is no reason they could not penetrate that market by combining a new design with its strong brand. A high-end line of Rubik’s speedcubes likely could garner a higher retail price while costing little more to manufacture (read: higher margin). Current speedcube manufacturers do not have mass market penetration the way Rubik’s does. Think about being able to buy a high-end cube at the drug store, rather than from an overseas vendor...lots of potential volume.