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.

Rubik's Cube

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.

NexCube

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.

An interesting recent decision from the Supreme Court in Austria concerned illustrations that were amended to serve as animated mascots, but the redesign was never paid for. Christian Schumacher of the MARQUES Copyright Team reports for Class 99.

The story of the animated chocolate mascots

In 2016, the owner of a chocolate museum with an adjacent shop obtained the exclusive rights (including making of derivative works) from an illustration and animation studio to the pictured illustrations, which were intended to be used as mascots called Choco and Coco (see top picture).

Later on the director of the studio was asked to create a proposal for figures, which could be animated, which he delivered (see picture below).

As he did not hear anymore about this project and assumed it was not followed up, he waived the agreed fee. However, the proposal was used as a template for a 3D mascot used prominently for the chocolate museum, as template for plush figures sold there and on various chocolate products.

Derivative works?

The studio (which asserted the rights in the proposals of its director) sued for copyright infringement. The Austrian courts up to the Austrian Supreme Court had to decide whether the proposals qualified for copyright protection as derivative works.

The Austrian Supreme court affirmed, considering that in particular the redesign of the eyes, in connection with the other changes, made the figures appear more cheerful.

This amounted to creative design elements surpassing a mere mechanical simplification (and was not just used for animation purposes by the chocolate museum), which departed not insignificantly from the initial design and therefore met the threshold for copyright protection as a derivative work.

Christian Schumacher is a partner of Schönherr Attorneys at Law, Austria, 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 Austrian Supreme Court.

The winners of the DesignEuropa Awards 2023 were announced at a ceremony at the AXICA convention centre in Berlin on 5 September.

The winner in the Small and Emerging Companies category was RemigoOne, an electric outboard motor for boats. It is made in Slovenia and the design is guided by innovation and sustainability principles.

In the Industry category, Italy’s Smeg won for its full automatic espresso coffee machine. The bean-to-cup coffee machine was designed by Vittorio Bertazzoni, Matteo Bazzicalupo and Raffaella Mangiarotti and allows the preparation of different coffee drinks in a simple and intuitive way.

As previously announced, the Lifetime Achievement Award was presented to Maria Benktzon of Sweden (pictured). She has pioneered inclusive design in everything from kitchenware to personal hygiene tools. She is also the first woman to receive the Lifetime Achievement Award.

The award winners were decided by a jury, which was led by French designer Isabelle Vérilhac.

More details about the winners, the finalists and the jury are available on the DesignEuropa page on EUIPO’s website here.

EUIPO has announced that DesignView has incorporated an in-house image search function to find visually similar designs.

It allows users to automatically compare designs with existing designs in DesignView.

The image search is now available for EUIPO designs but it is expected to be rolled out for all EU IP offices soon.

It can be explored on DesignView here.

The new feature is part of EUIPO’s digital transformation programme. More information is available on EUIPO’s website here.

The winners of the 2023 WIPO Global Awards were recognised during the recent WIPO Assemblies in Geneva. The winners, who have all used intellectual property as a catalyst for economic, social and cultural impact, were:

• Aerosol Magee Scientific – Slovenia: a developer of air quality measurement instruments
• Centro de Retina Medica y Quirúrgica (CRQM) – Mexico: nanotechnology platform for drug delivery to the retina
• Flexxon – Singapore: AI-base cybersecurity solution that detects and prevents ransomware attacks in real-time
• Lactips – France: technology for plastic-free plastic that is 100% bio-based, fully biodegradable and water-soluble
• Shanghai Westwell Technology Co. Ltd. – China: multi-scenario intelligent and green solutions for the bulk logistics field
• Xi 'an KissFuture Network Technology Co., LTD – China – leader in AR/VR technologies offering solutions for cinemas and cultural institutions
• YAKWETU™ Online Limited – Kenya: entertainment technology company that is disrupting piracy-dominated distribution of digital content in Africa

The winners all receive a personalised mentorship programme to help them use IP for business growth and other forms of support and sponsorship.

WIPO Director General Daren Tang said: “Building a more inclusive IP ecosystem that brings IP closer to SMEs is key to WIPO’s strategy, and we see these awards as a chance to celebrate, recognize and reward dynamic and innovative SMEs using innovation to change the world.”

Read more about the awards and the winners on WIPO’s website. Photo: WIPO/Berrod.

Swedish designer Maria Benktzon is the winner of the Lifetime Achievement Award at the DesignEuropa Awards 2023. The awards will be presented in Berlin on 5 September and will be live streamed.

Maria Benktzon is known for her innovative and inclusive designs of everyday objects, which have featured at MoMA, the National Museum of Sweden and the Smithsonian. She designed the iconic coffee pot used by flight attendants of SAS Airlines and the ubiquitous Tupperware knives.

She has developed an inclusive approach to design by creating elements that allow people with limited hand strength or movement to remain independent.

EUIPO has also announced the eight DesignEuropa Awards finalists, who come from seven countries. Almost 700 applications and nominations were received from 43 countries for both the Small and Emerging Companies and Industry categories.

Finalists

The finalists in the Small and Emerging Companies category are:

• Jarsty (Italy): All-in-one microwavable cooking system.
• Mindful Design Coffee Brewer (Austria): Pour over filter coffee set.
• RemigoOne (Slovenia): Integrated electric outboard motor.  
• ZigZag Boulder (Hungary): Outdoor modular climbing wall system. 

The finalists in the Industry category are:

• Cleveron 402 (Estonia): Automated self-service pickup point for click-and-collect orders.
• Full Automatic Espresso Coffee Machine (Italy): Coffee machine which offers the possibility of grinding coffee beans and makes up to 7 different types of coffee.
• The Performer (Croatia): Compact workspace for remote working.
• WithME (Poland): Collaborative office chair offering advanced ergonomics with minimal adjustments.

EUIPO Executive Director of the EUIPO, Christian Archambeau, said: “The DesignEuropa Awards highlight the effective use of design and how its protection can help drive economic, social, cultural and environmental development.”

The finalists were chosen by the DesignEuropa Awards Jury comprising design professionals, academics, entrepreneurs, former winners and IP experts. It is led by Isabelle Vérilhac, president of the Bureau of European Design Associations and Director of Innovation and International Affairs at the Saint-Étienne UNESCO City.

Picture from EUIPO website

Class 99 readers may be interested to read the Hague System Yearly Review, recently published by WIPO.

According to the Review, there were 7,973 international applications in 2022 (+18.8%) containing 25,030 designs. There were 7,725 international registrations (+26.5%) containing 21,081 designs.

In total, there were 51,172 international registrations in force (+7.8%).

According to WIPO:

Applicants based in Europe accounted for 66.3% of all designs filed in 2022, reflecting Hague System membership – the majority of members are in Europe. Following the accessions of China, Japan and the Republic of Korea, the proportion of designs originating from Asia increased from 3.0% in 2012 to 22.9% in 2022.

You can find more information and download the Hague Yearly Review on WIPO’s website here.