The Rubik’s Cube as a Work Protected by Copyright?

Copyright can offer a useful compromise for trying to overcome the time limits inherent in the finite duration of patent protection and utility models, where it is not possible to obtain the protection afforded by trademarks.

This is an approach that the toy manufacturer Spin Master has recently been pursuing before the Business Division of the Venice Court, as the proprietor of the word marks “Rubik” and “Rubik’s”, the patronymic of its inventor, Ernő Rubik (a Hungarian architect, born in 1944), who in 1974 invented the three-dimensional cube-shaped puzzle as a teaching aid to help his students understand three-dimensional objects.

Patent protection for the Rubik’s Cube has long since lapsed, whereas protection is still in place as a 2D figurative trademark, but not as a 3D trademark, since all of the Rubik’s Cube’s essential characteristics are necessary to achieve a technical result. For that reason, in 2023, the EUIPO ruled out the possibility of registering the object as a three-dimensional trade mark because it did not meet the requirements set out in Article 7(1)(e)(ii) of Council Regulation (EC) No 207/2009. That decision was recently reaffirmed by the EU General Court, which upheld the invalidation of the Rubik’s Cube shape marks.

I assume that, in order to overcome that limitation and thereby secure three-dimensional protection for the famous puzzle, Spin Master —which in January 2021 acquired the shares in Rubik’s Brand Ltd and holds the industrial property rights relating to the Cube— has brought, by way of urgent interim relief before the Venice Court, a claim alleging infringement of the Rubik’s Cube’s economic copyright, classifying it as a work of industrial design pursuant to Article 2(10) of the Italian Copyright Act (LdA).

The Italian reform introduced by Legislative Decree No. 95/2001, implementing Article 17 of Directive 98/71/EC, recognized, so far as works of industrial design are concerned, the possibility of cumulating the protection afforded to designs under the Industrial Property Code with copyright protection. It made that protection subject to a dual requirement: a creative character and, additionally, artistic value (a requirement still in force in the Italian legal system). As a result, it demands a higher degree of originality than the standard required for other works of authorship.

The Venice Court held, in July 2025 (a decision later confirmed upon interlocutory review of the interim measure), that both requirements were satisfied.

As regards creativity, the Court identified it in the subdivision of each face into smooth-surfaced squares; in the combination of the colours white, blue, yellow, orange, red and green; and in the pronounced grid, defined by black grooves.

As to “artistic value”, the Court referred to the numerous forms of recognition the object has received in the artistic and cultural spheres, which, according to the Court, “demonstrates how the object has become a symbol of the 1980s and remains a must-have not only among children and teenagers, but also among design enthusiasts.”

In my view, this amounts to a cursory, less than rigorous application of the objective indicia used for assessment —long identified in the case law of the Italian Supreme Court — with the very real risk of lowering, rather than raising, the threshold for copyright protection.

On that approach, mass-market products such as a toy may be treated as a work of authorship simply because they have been shaped by strong and enduring sales success and by award-driven marketing strategies: a view in which “art” is eclipsed by the product as such. Yet, for copyright protection, it is necessary to preserve the distinction between “design” and “artistic design”; in the latter case, the work must reflect the author’s personality, unconstrained by technical or purely functional requirements.

Moreover, as noted by the Court of Justice in Cofemel (Court of Justice of the European Union, 12 September 2019, case C-683/17, Cofemel – Sociedade de Vestuàrio SA v G-Star Raw CV.), the concept of a “work” must be interpreted and applied uniformly. The Venice Court’s decision, although given in interim proceedings, appears to be at odds with earlier decisions in France and Germany, which denied copyright protection for the well-known toy.