can you copyright/trademark a color combination?

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> Continue reading

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