According to the news reports that Greg Aharonian e-mailed, officers from the Department of Homeland Security recently asked a toy store owner to remove “Magic Cube” (r) toys that have the same look and feel of the original Rubik’s cube. Speculation has been flying around the net as to the source of the officer’s authority.
It turns out that the company that sells the original cube, Seven Towns Limited, holds a registered trademark on the design of the cube. According to the trademark description:
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 consisting of the colors red, white, blue, green, yellow and orange. The drawing is lined for the colors red and green. The remaining colors — white, blue, yellow, and orange — do not appear in the drawing, but are claimed as a feature of the mark. (U.S. Trademark Registration No. 75,105,330).
From an initial glance, I would not think that this trademark description would cover the Magic Cube (r) because of the clear difference in stated colors. However, that would be for a jury to decide.
A trademark on the design of an object is known as “trade dress.” Generally, trade dress is thought of as a distinctive, nonfunctional feature of an object that allows a customer to readily identify the manufacturer of the object.
In a recent case (TrafFix), the Supreme Court ruled that items that were previously patented are generally considered functional. Because tradedress is only on nonfunctional features of an object, there can be no protection of previously patented elements.
The owner of Pufferbelly Toys in St. Helens worries when Homeland Security agents show up on official business
Thursday, October 28, 2004ASHBEL S. GREEN
Nothing about running a small store called Pufferbelly Toys prepared Stephanie Cox for a cryptic phone call from the U.S. Department of Homeland Security.
“It’s all very surreal, quite honestly,” Cox said Wednesday. “I thought it was a prank when I first heard. I couldn’t understand why Homeland Security would be investigating a tiny toy store in St. Helens.”
The call came in late July or early August. A man identifying himself as a federal Homeland Security agent said he needed to talk to Cox at her store.
Cox asked what it was all about.
“He said he was not at liberty to discuss that,” she said.
They agreed to meet in early August, but the agent later canceled. Cox thought the matter had blown over when the agent called back Sept. 9 to say he was coming out there.
“I was shaking in my shoes,” said Cox, who has owned Pufferbelly Toys for more than four years. “My first thought was the government can shut your business down on a whim, in my opinion. If I’m closed even for a day that would cause undue stress.”
The next day, two men arrived at the store and showed Cox their badges. The lead agent asked Cox whether she carried a toy called the Magic Cube. She said yes. The Magic Cube, he said, was an illegal copy of the Rubik’s Cube, one of the most popular toys of all time. He told her to remove the Magic Cube from her shelves, and he watched to make sure she complied.
The whole thing took about 10 minutes.
After the agents left, Cox called the manufacturer of the Magic Cube, the Toysmith Group, which is based in Auburn, Wash. A representative told her that the Homeland Security agents had it wrong. The Rubik’s Cube patent had expired, and the Magic Cube did not infringe on rival toy’s trademark.
John Ryan, corporate counsel for the Toysmith Group, said Homeland Security, which includes Customs, routinely blocks shipments of products from overseas that violate intellectual property rights, such as patents, copyrights and trademarks.
“That’s fine. That’s not an outrageous federal act by any means,” Ryan said. “But we certainly were surprised that a federal agent approached a toy store owner and frightened them.”
Virginia Kice, a spokeswoman for Immigration and Customs Enforcement, said agents went to Pufferbelly based on a trademark infringement complaint filed in the agency’s intellectual property rights center in Washington, D.C.
Kice also said Homeland Security officials routinely investigate such complaints and follow up if they determine they are valid.
“One of the things that our agency’s responsible for doing is protecting the integrity of the economy and our nation’s financial systems and obviously trademark infringement does have significant economic implications,” she said.
After gaining assurances from Toysmith officials, Cox put the Magic Cube back on the shelf soon after the agents left.
Six weeks after her brush with Homeland Security, Cox is still scratching her head.
“Aren’t there any terrorists out there?” she said.
Ashbel “Tony” Green: 503-221-8202; email@example.com