December 26, 2008 CBP Bulletin Notice on Admissibility of Certain Cube Puzzles

Proposed revocation of rulings; proposed revocation of treatment. CBP is proposing to revoke two rulings on the admissibility of certain cube puzzles. Additionally, CBP proposes that this notice cover any rulings on this merchandise that may exist but have not been specifically identified. CBP is also proposing to revoke any treatment it has previously accorded to substantially identical transactions.

CBP states that any party who has received a contrary written ruling or decision on the merchandise that is subject to the proposed revocations, or any party involved with a substantially identical transaction, should advise CBP by January 25, 2009, the date that written comments on the proposed rulings are due. Furthermore, CBP states that an importer's failure to advise CBP of such rulings, decisions, or substantially identical transactions may raise issues of reasonable care on the part of the importer or its agent for importations subsequent to the effective date of the final decision in this notice.

Cube puzzles. The merchandise at issue is identified as the "Magic Cube," a three-dimensional white twist cube puzzle, which features nine color patches on each of its six faces with the color on each face being the same and consists of the colors fuchsia, aqua, black, lime green, yellow and pink, and the "Intellectual Cube," a three-dimensional black twist cube puzzle which features sixteen color patches on each of its six faces with the color on each face being the same and consists of the colors red, green, blue, fuchsia, yellow and white.

CBP is proposing to issue HQ H027746 in order to revoke HQ 477375 and HQ W480158, and determine that the "Intellectual Cube" is admissible but the "Magic Cube" is not admissible due to infringement on the design trademark of the "Rubik's Cube."

CBP proposes this change as a correction due to new factual information which was not addressed in the original determinations made in rulings HQ 477375 and HQ W480158. CBP proposes this amended determination because, pursuant to 19 CFR 177.2(b)(1), such determinations require consideration of all material facts related to the transaction to be included in consideration of the determination, and pursuant to 19 CFR 177.2(b)(4), each ruling requires all directly related documents be included in consideration of the determination. The existence of the International Trade Commission Exclusion Order on certain cube puzzles, Investigation No. 337-TA-112 (ITC Publication 1334, published January 1983) is a material fact and a directly related document to the determination at hand.

The protected "Rubik's Cube" trademark is employed in a three-dimensional twist cube puzzle. The trademark certificate describes the mark as follows, "The mark consists of a black cube having nine [square] color patches on each of its six faces with the color patches on each face being the same [when the puzzle is purchased, and when the puzzle is solved] and consists of the colors red, white, blue, green, yellow and orange."

The ITC exclusion order under investigation no. 337-TA-112 is accompanied by images of both the protected and infringing merchandise. The "Magic Cube" differs from the "Rubik's Cube" only in its color scheme, the design and function are otherwise the same. The "Intellectual Cube" is similar in function but its design is a 4x4x4 construction with sixteen color patches on each of its faces. The ITC exclusion order includes images of "representative infringing cube puzzles," and clearly provides examples of merchandise found to be infringing with variations of shades of colors that fall within the scope of the order. The "Rubik's Cube" design trademark is protected for the color patch colors of red, white, blue, green, yellow, and orange. The colors used in the ''Magic Cube'' design are red, blue, black, green, yellow and pink. The ITC exclusion order provides images that represent a variety of shades of colors already determined to be infringing by the ITC, including some that are not identical to the specific colors on the "Rubik's Cube." The "Intellectual Cube" is determined to be outside the scope as it has a 4x4x4 construction whereas the protected design is 3x3x3.

CBP now proposes that the 3x3x3 "Magic Cube" puzzle falls clearly within the scope of the ITC exclusion order under investigation no. 337-TA-112 and is subject to exclusion from entry into the U.S.

December 26, 2008 CBP Bulletin (Vol. 43, No. 1) available athttp://www.cbp.gov/xp/cgov/trade/legal/bulletins_decisions/bulletins_2008/