Evert van Gelderen of the MARQUES Copyright Team reports on a recent copyright case in the Netherlands, which found that the design of the Rubik’s Cube is protected by copyright but there was no infringement by NexCube.
Spin Master is the current copyright owner of the Rubik’s Cube. Goliath markets another cube-shaped game object under the name (MoYu) NexCube. Spin Master claimed that Goliath was thereby infringing its copyright and started proceedings in the Dutch courts.
According to Spin Master, three copyrights can be distinguished: (1) copyright on the three-dimensional shape of the Rubik’s Cube, (2) copyright on the game concept and (3) copyright on the design of the cube including its colours and grid. Spin Master argued that each of these copyrights was infringed.
In summary proceedings, the interim relief judge of the District Court of Gelderland dismissed Spin Master’s claims (ECLI:NL:RBGEL:2022:2942). On 12 September 2023, the Arnhem-Leeuwarden Court of Appeal also dismissed Spin Master’s claims in appeal (ECLI:NL:GHARL:2023:7632).
No copyright in 3D shape
According to the Court of Appeal, there is no copyright in the three-dimensional shape of the Rubik’s Cube.
In its judgment, the court refers to quotes from the book ‘Cubed’, which was written by the original designer of the Rubik’s Cube. The Court of Appeal attached more value to this book than to the content of a statement of the designer dated 23 May 2022 submitted in these proceedings.
The court considered that the Rubik’s Cube is the expression of the idea of the ideal geometric figure according to the conviction of that designer and that the cube is thereby entirely, or at least predominantly, technically and functionally determined.
Moreover, at least that the idea of the Rubik’s Cube coincides with its expression. According to the Court of Appeal, this circumstance prevented the author from expressing his personality in the Rubik’s Cube through free and creative choices.
No copyright in game concept
The game concept also lacks copyright protection, according to the court. The game concept is expressed by the Rubik’s Cube with the six colours and completely coincides with it, so the game concept as such does not constitute a separate work eligible for protection.
Copyright in design
The width, colour and thickness of the grid and colours red, green, yellow, blue, white and orange of the Rubik’s Cube give it an original character, according to the Court of Appeal. To that extent, the cube is copyrighted.
This judgment is in line with an earlier judgment of the same Court of Appeal on 13 July in proceedings on the merits in appeal between Spin Master and Beckx c.s. (ECLI:NL:GHARL:2021:6712).
No copyright infringement
Finally, the Court of Appeal ruled that the overall impressions of the Rubik’s Cube on the one hand and the NexCube on the other hand are insufficiently similar, among other things because:
(a) the (black) grid on the NexCube is missing while, according to the Court of Appeal, the grid is a characteristic visual aspect of the Rubik's Cube,
(b) the colour tones of the NexCube are different, and
(c) the middle sub-cubes of the NexCube have a round finish on all sides instead of a square one.
For these reasons there was no copyright infringement.
Evert van Gelderen is a partner of Clairfort Attorneys, the Netherlands, and a member of the MARQUES Copyright Team. Please contact him directly for further information. The illustrations are taken from the judgment published by the Court of Appeal.