IP Law Daily, TRADEMARK—N.D. Ill.: Color-cube seller secures invalidation of rival’s ‘CMY CUBES’ trademarks, defeats infringement claims, (Sep 24, 2026)

By Saurabh Kashyap, B.A., M.A., LL.B., LL.M.

The registered marks merely described cyan, magenta, and yellow cube toys and lacked secondary meaning, leaving them invalid and unable to support infringement claims.

A federal district court in Illinois has granted partial summary judgment to a seller of color prism cube toys in its challenge to a competitor’s CMY CUBES trademarks. The court declared the competitor’s two registered marks invalid and ordered their cancellation, entered judgment of noninfringement, and rejected the competitor’s trademark infringement counterclaims. The court found that CMY CUBES directly described cyan, magenta, and yellow cube toys and had not acquired secondary meaning. However, it denied the competitor’s bid for summary judgment on a fraudulent trademark registration claim and declined as premature the successful challenger’s request for attorney fees (Shenzhen Wanfan Technology Co. Ltd. v. Orbital Structures Pty Ltd., No. 1:23-cv-02330 (N.D. Ill. Sep. 22, 2026)).

Background. Shenzhen Wanfan Technology Co. Ltd. sells a color prism cube under its federally registered iKeelo trademark. Orbital Structures Pty Ltd. develops and sells color prism toys, including its flagship CMY Cube, which uses cyan, magenta, and yellow filters to create a changing spectrum of colors. Both companies sold color cubes employing the color-creation properties of cyan, magenta, and yellow.

Orbital owned U.S. Trademark Registration No. 6,913,023 for CMY CUBES and Registration No. 7,070,552 for a design featuring the CMY CUBES word mark. Wanfan sold its competing cube under the iKeelo mark but used “CMY Cube” and variations such as “CMY Color Cube” in its listings and packaging.

After Orbital submitted infringement complaints to online marketplaces carrying Wanfan’s products, Wanfan sued, seeking declarations that it did not infringe and that Orbital’s CMY CUBES registrations were invalid and should be canceled. Wanfan also alleged fraudulent trademark registration under 15 U.S.C. §1120. Orbital counterclaimed for trademark infringement, unfair competition, false designation of origin, and violation of the Illinois Uniform Deceptive Trade Practices Act. The parties filed competing partial summary judgment motions.

Descriptive marks. The court held that CMY CUBES was descriptive rather than suggestive. Citing SportsFuel, Inc. v. PepsiCo, Inc., 932 F.3d 589 (7th Cir. 2019), the court explained that descriptive marks directly describe a product's characteristics, whereas suggestive marks require imagination to determine the nature of the goods.

Although federal registration created a presumption that Orbital’s marks were at least suggestive, Wanfan rebutted that presumption. “CMY” was a commonly used abbreviation for cyan, magenta, and yellow, and Orbital applied CMY CUBES to a toy cube with cyan, magenta, and yellow faces. No imagination was required to connect the mark with the product. The court also rejected Orbital’s reliance on products that were not cubes or did not use those three colors, reasoning that expanding a product line could not give Orbital exclusive rights to a common descriptive term.

Secondary meaning. A descriptive mark could nevertheless receive protection if consumers had come to associate it with a single commercial source. Relying on Packman v. Chicago Tribune Co., 267 F.3d 628 (7th Cir. 2001), the court considered evidence concerning advertising, sales, duration of use, consumer testimony and surveys.

Orbital’s strongest evidence consisted of declarations from 17 customers, but it disclosed those witnesses approximately six months after fact discovery closed. Because the late disclosure was neither justified nor harmless, the court excluded the declarations under Rule 37(c)(1). Orbital presented no consumer survey.

The remaining circumstantial evidence did not establish secondary meaning. Orbital had used CMY CUBES for only about two-and-a-half years during the relevant period. Although its social-media accounts attracted substantial audiences and it claimed approximately 534 million views, the evidence did not show that the advertising caused consumers to identify CMY CUBES with a single source. Similarly, evidence of more than 200,000 product sales exceeding $5.4 million lacked a defined time period and meaningful market context.

The court consequently found that no reasonable jury could conclude that the descriptive marks had acquired secondary meaning. It declared both registrations invalid and ordered their cancellation. Because an invalid trademark could not be infringed, the court also granted Wanfan summary judgment on its noninfringement claim and Orbital’s infringement counterclaims.

Registration fraud. Orbital did not obtain summary judgment on Wanfan’s fraudulent registration claim. Wanfan alleged that Orbital falsely represented to the USPTO that CMY CUBES had no significance and was not a term of art in connection with the relevant goods. The court found a factual dispute over the truthfulness of that representation because a reasonable jury could conclude that CMY or CMY CUBES had significance when applied to a toy using CMY color-creation principles.

Attorney fees. Finally, the court denied Wanfan’s request for attorney fees under 15 U.S.C. §1117(a) without prejudice. Citing LHO Chicago River, LLC v. Perillo, 942 F.3d 384 (7th Cir. 2019), the court explained that fees could be awarded in an “exceptional” trademark case, but found the request premature because several claims remained unresolved. Wanfan could renew its request after the litigation concluded.

The Case is No. 1:23-cv-02330.

Judge: Wood, A.

Attorneys: Timothy Tiewei Wang (Ni, Wang & Massand, PLLC) for Shenzhen Wanfan Technology Co Ltd. Kevin John Keener (Keener and Associates, PC) for Orbital Structures Pty Ltd.

Companies: Shenzhen Wanfan Technology Co Ltd.; Orbital Structures Pty Ltd.

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