Cubes and Lawyers Part 2: Countersuit!

This is just a followup to one of the items in a previous post about legal action by Rubik's Brand, Ltd.

In response to aggressive action by Rubik's, TheCubicle has put together a countersuit. Here's the explanation from Phil from TheCubicle, from his post on reddit.com/r/cubers :

Hi Everyone,

This is Phil from TheCubicle. I'm posting here to give everyone an update on the legal situation with Rubik's Brand Limited.

On Friday, February 2, Cubicle Enterprises LLC has filed a lawsuit against Rubik’s Brand Limited seeking cancellation of four of its trademarks on the basis of utilitarian functionality, genericness, and fraud, as well as treble damages for various antitrust violations related to trademark misuse and attempted and actual monopolization. The suit also requests a declaratory judgment that TheCubicle has not violated Rubik’s purported federal and state trademark rights.

This controversy first arose in October 2017, when Rubik’s sued TheCubicle for trademark infringement, threatening to shut down its business and strip away its assets, effectively destroying the livelihoods of our employees and their ability to serve the community. A line of dialogue with Rubik’s was quickly opened in hopes of resolving the dispute productively and amicably. However, the painstakingly frustrating negotiations that followed made it clear that Rubik’s legal claims were unsubstantiated and dealing with Rubik’s was impossible.

It has also become clear that Rubik’s wants complete control of speedcubing and is willing to resort to bullying, intimidation, abuse of intellectual property law, and monopolistic tactics, including illegal tying activities, in its attempt to get it. We will not allow this to happen.

Rubik’s fails to see that our community is built on the bonds of friendship, trust, and the spirit of fair play. We grow together as cubers and people, and this is what makes our community special.

Our world of sharing ideas, helping each other as friends, and competing at our best under fair rules with our favorite cube products from sources chosen by cubers is something that should never be tainted by Rubik’s voracious greed to control and dominate.

We will not allow Rubik’s to leverage its invalid intellectual property, monopolistic demands, and other threats against its competitors to oppress us or limit the opportunities for expanding cubing, both for competitors and fans. We will not allow its attempt at perpetuating a monopoly to be successful. And, we will not allow the shadow of Rubik’s to loom over us anymore.

For these reasons, we took action in Federal court to stop Rubik’s from threatening our company and the survival of its business operations, our community, and the market.

We cannot thank our community enough for its support and understanding. The past few months have been extremely challenging, and we are beyond appreciative of the overwhelming support and expressions of solidarity from everyone around us.

We tried to settle this on reasonable terms with Rubik’s, but it became apparent that Rubik’s was not bargaining in good faith and that it was necessary to protect our community through this litigation. We are confident in the strength of our legal claims against Rubik’s, and will continue to do our best in this difficult situation. We look forward to representing the cubing community’s interests.

A copy of our complaint: https://thecubicle.us/Info/ECF1_Complaint.pdf Accompanying exhibits: https://thecubicle.us/Info/ECF1_Complaint_Exhibits.zip YouTube video: https://youtu.be/A11ggIu6n8E

Also just recently, the Rubik's Brand/Red Bull tournament has announced their first event. This tournament would be the first of its kind after Rubik's failed attempt to reach some sort of agreement with the WCA. Several other dates in other locations have been planned. Similarly to TheCubicle, the WCA was not amenable to what they perceived as strongarm tacticts to take over competitive cubing and chose not to work with Rubik's and Red Bull on these events.

Cubes and Lawyers don't mix.

So there have been a few odd developments in the legal side of cubing of late. The original legal history of the Rubik's cube was a bit mixed-up and checkered, but most of that was over by 1980.

Back in 2012, Rubik's tried to block DaYan (one of the first companies making improved 3x3x3 cubes) from exporting cubes and there were a few instances of cubes being destroyed at customs, and DaYan experimented with using an alternate color scheme or unassembled kits as workarounds, but for whatever reason this was short-lived and DaYan was back selling regular cubes by late 2013.

There was also some issues in the EU with Simba Toys of Germany, where Simba felt that the function of the puzzle should only be a patent and not a trademark, where Simba went through a 10-year legal battle with Seven Towns, the company in charge of administrating the Rubik's IP. I have seen differing accounts of the winner of the legal battle, but only because Rubik's likes to talk about the EUIPO  decision, (European Union Intellectual Property Office) and that was later overturned by the ECJ (European Court of Justice).

The two new problems are a little closer to home for Americans.

The first of two recent problems is that Rubik's brand is suing Duncan Toys and Toys 'R' Us. This is about trademark, and not the patent.

I had always assumed that the reason Target and Walmart never sold other brands of cubes is that they had a distribution deal with Hasbro and/or Seven Towns to sell real Rubik's cubes and didn't (and weren't going to) have a deal with the other manufacturers. In the last few years, the only other cube-like puzzles that I've seen in the big box stores have been the toys made by Meffert's, like the  Skewb Extreme, The Molecube, and the Gear Ball and Gear Cube puzzles.

However, I was not entirely surprised at Duncan's recent entrance into retail cubing. (You should know Duncan from their excellent Yo-Yo products.) The Quick Cube wasn't released until just a few years ago, and well after the expiration of Rubik's patent. (Applied for in 1975, granted in 1977, it should have expired in 2002.) Unlike DaYan or Simba Toys, Duncan already has a great grasp on the toy store market in the US.

I really like the Duncan Quick Cube, because at $5 it's an easily obtainable starter cube, and it's a much faster cube right out of the box than a Rubik's brand cube is. With a little bit of silicone lubricant, it's an even better cube, and I actually bought a handful of Duncan cubes for other people in an effort to start them off cubing with something decent. With a Rubik's brand cube, especially now with the tiled redesigned model out, it's not exactly a comfortable cube for beginners. More emphasis was placed on making a Rubik's brand cube not able to be tampered with or disassembled and a lot less emphasis was placed on smooth turning, so I couldn't recommend it. If you really want a Rubik's brand cube that works well, it takes months of breaking in for it to have a chance to be comfortable, and some of them get really loose and catchy by then. On the other hand, if you're the sort of person that thinks you're going to turn the cube so hard that it's going to pop apart and you feel compelled to eat one of the pieces but might accidentally choke on it, then by all means stick to the Rubik's brand cube.

The other lawsuit is that Rubik's brand is suing TheCubicle, an online speedcubing retailer. It's disappointing, while not entirely surprising. Since TheCubicle does some assembly and customization and is inside the borders of the US, it makes them appear to some as an infringing manufacturer and not just an import company.

I would have to imagine that nobody that buys from TheCubicle is trying to get a Rubik's brand cube, and anybody that even knows about TheCubicle is well aware of the difference between a Rubik's brand cube and other brands of cubes. Sadly, all suing TheCubicle seems to be doing is driving a wedge between speedcubing hobbyists and the Rubik's brand.  I find this rather sad because speedcubers are what have helped keep the Rubik's cube one of the most popular toys of all time for this long. We have long been emissaries for cubing, when all Rubik's has done in the same time period was make the same product with very little improvement and no effort to make a premium product for speedcubers. They're still using the same design for their 4x4x4 cubes that they were using in 1982 that still has the same design flaw it's always had while other companies have made vast improvements in the mechanism. Their current 2x2x2 is better than their 80's 2x2x2 only because that was such an exceedingly low bar to clear, and many could argue that the new 3x3x3 is actually worse for speedcubers as it allows no corner cutting whatsoever and is too variable in quality right out of the package.

I can understand Rubik's desire to protect their trademark, but as their patent has expired it should have been logical for them to expect to face some competition in the marketplace. While I don't know how much these lawsuits have cost them, I have to think that they could have fostered more good will and maintained more sales by designing better cubes - both for beginners and for the speedcubing crowd. It would have again given them some measure of patent protection, and cubers wouldn't be in the awkward position of not being able to recommend the product of the original designer.