Case: 1:22-cv-01801 Document #: 80 Filed: 12/05/22 Page 1 of 10 PageID #:3713
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
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`No. 22 C 1801
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`Judge Sara L. Ellis
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`OPINION AND ORDER
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`ANTSY LABS, LLC; ZURU INC.,
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`Plaintiffs,
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`THE INDIVIDUALS, CORPORATIONS,
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`LIMITED LIABILITY COMPANIES,
`PARTNERSHIPS, and UNINCORPORATED )
`ASSOCIATIONS IDENTIFIED ON
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`SCHEDULE A THERETO,
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`v.
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`Defendants.
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`Plaintiffs Antsy Labs, LLC (“Antsy Labs”) and Zuru Inc. (“Zuru”) filed this lawsuit
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`against the Individuals, Corporations, Limited Liability Companies, Partnerships, and
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`Unincorporated Associations identified on Schedule A, including Defendants Kakaixi,
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`Dragonflydreams, and Fidget Dice (the “Moving Defendants”). Plaintiffs allege copyright
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`infringement in violation of 17 U.S.C. § 101 et seq., false designation of origin in violation of 15
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`U.S.C. § 1125(a), and violation of the Illinois Uniform Deceptive Trade Practices Act
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`(“IUDTPA”), 815 Ill. Comp. Stat. 510/1 et seq. While Plaintiffs have settled with or obtained a
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`default judgment against many of the defendants named on Schedule A, the Moving Defendants
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`have appeared in this case and filed a motion to dismiss the complaint pursuant to Federal Rule
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`of Civil Procedure 12(b)(6). The Court allows Plaintiffs to proceed on their copyright
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`infringement claim. But the Court dismisses the false designation of origin and IUDTPA claims
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`because Plaintiffs have failed to sufficiently allege the existence of a valid mark.
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`Case: 1:22-cv-01801 Document #: 80 Filed: 12/05/22 Page 2 of 10 PageID #:3714
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`BACKGROUND1
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`Antsy Labs created the original Fidget Cube product in 2016, publishing it on the
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`KickStarter platform in August 2016. In early 2017, Antsy Labs granted Zuru a license for the
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`intellectual property rights associated with the Fidget Cube product. Antsy Labs then applied for
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`a copyright for its Fidget Cube product in June 2017. The United States Copyright Office issued
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`a certificate of registration for the Fidget Cube product with an effective date of June 30, 2017.
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`Antsy Labs deposited an exemplary unit of the Fidget Cube with the United States Copyright
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`Office, which is available for inspection, and appears as such:
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`Doc. 1 ¶ 10. Antsy Labs registered the trademark “Fidget Cube by Antsy Labs” on September
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`18, 2018, with a first use date of August 30, 2016. Doc. 53-1 at 38.
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`Since April 2017, Plaintiffs have been the official sources for the genuine Fidget Cube
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`product line in the United States. Plaintiffs have spent substantial time, money, and resources
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`developing, advertising, and promoting Fidget Cube products. As a result, products with the
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`Fidget Cube name and mark are widely recognized and associated with products sourced from
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`Plaintiffs.
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`1 The Court takes the facts in the background section from Plaintiffs’ complaint and exhibits attached
`thereto and presumes them to be true for the purpose of resolving the Moving Defendants’ motion to
`dismiss. See Phillips v. Prudential Ins. Co. of Am., 714 F.3d 1017, 1019–20 (7th Cir. 2013). Although
`the Court normally cannot consider extrinsic evidence without converting a motion to dismiss into one for
`summary judgment, Jackson v. Curry, 888 F.3d 259, 263 (7th Cir. 2018), the Court may consider
`“documents that are central to the complaint and are referred to in it” in ruling on a motion to dismiss,
`Williamson v. Curran, 714 F.3d 432, 436 (7th Cir. 2013). The Court “may also take judicial notice of
`matters of public record.” Orgone Cap. III, LLC v. Daubenspeck, 912 F.3d 1039, 1043–44 (7th Cir.
`2019).
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`2
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`Case: 1:22-cv-01801 Document #: 80 Filed: 12/05/22 Page 3 of 10 PageID #:3715
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`The Moving Defendants sell products on Amazon, including fidget toys that are at least
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`substantially similar to Plaintiffs’ Fidget Cube products. Plaintiffs allege that the following
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`products sold by the Moving Defendants infringe Antsy Lab’s copyright:
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`Doc. 53-1 at 5, 15, 21. Plaintiffs also allege that the Moving Defendants use the Fidget Cube
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`mark in connection with the sale of these products, creating a false and misleading representation
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`as to the origin and sponsorship of the products.
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`LEGAL STANDARD
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`A motion to dismiss under Rule 12(b)(6) challenges the sufficiency of the complaint, not
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`its merits. Fed. R. Civ. P. 12(b)(6); Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir.
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`1990). In considering a Rule 12(b)(6) motion, the Court accepts as true all well-pleaded facts in
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`the plaintiff’s complaint and draws all reasonable inferences from those facts in the plaintiff’s
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`favor. Kubiak v. City of Chicago, 810 F.3d 476, 480–81 (7th Cir. 2016). To survive a Rule
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`12(b)(6) motion, the complaint must assert a facially plausible claim and provide fair notice to
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`the defendant of the claim’s basis. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v.
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`Twombly, 550 U.S. 544, 555 (2007); Adams v. City of Indianapolis, 742 F.3d 720, 728–29 (7th
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`Cir. 2014). A claim is facially plausible “when the plaintiff pleads factual content that allows the
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`court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
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`Iqbal, 556 U.S. at 678.
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`3
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`Case: 1:22-cv-01801 Document #: 80 Filed: 12/05/22 Page 4 of 10 PageID #:3716
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`Copyright Infringement Claim (Count I)
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`ANALYSIS
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`To state a claim for copyright infringement under 17 U.S.C. § 106, Plaintiffs must
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`I.
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`plausibly allege that (1) they own a valid copyright, and (2) the Moving Defendants copied
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`“constituent elements of the work that are original.” Feist Publ’ns, Inc. v. Rural Tel. Serv. Co.,
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`499 U.S. 340, 361 (1991). The Moving Defendants make three arguments for dismissal of this
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`claim.
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`First, the Moving Defendants argue that Plaintiffs have not provided them with fair notice
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`of Plaintiffs’ copyrighted work. But the Moving Defendants ask too much of Plaintiffs at this
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`stage, particularly given that a copyright infringement claim need not meet Rule 9(b)’s
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`particularity requirements. Mid Am. Title Co. v. Kirk, 991 F.2d 417, 421–22 (7th Cir. 1993).
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`Plaintiffs have not only provided the copyright registration but also included a photograph of the
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`Fidget Cube product, comparing it to an example of an allegedly counterfeit product. See Doc. 1
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`¶ 30. The complaint also includes an image from Plaintiffs’ website, which describes the Fidget
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`Cube product as having “six sides,” with “[e]ach side featur[ing] something to fidget with: Click.
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`Glide. Flip. Breathe. Roll. Spin.” Id. ¶ 11. This further explains the contours of the copyrighted
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`work. Cf. Art of Design, Inc. v. Pontoon Boat, LLC, No. 3:16-CV-595, 2017 WL 3608219, at *4
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`(N.D. Ind. Aug. 22, 2017) (plaintiff did not sufficiently identify the copyrighted designs at issue
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`where, although it did provide the copyright registration numbers, it did not include “any
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`descriptions or explanations as to what the designs are or look like”). Further, the Moving
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`Defendants’ briefing belies their argument that they have to “guess” at what Plaintiffs claim
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`constitutes the copyrighted work, Doc. 53 at 4, as they instead make specific arguments as to
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`how their products differ from the Fidget Cube product, id. at 7–8; see Uniface B.V. v. Sysmex
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`4
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`Case: 1:22-cv-01801 Document #: 80 Filed: 12/05/22 Page 5 of 10 PageID #:3717
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`Am., Inc., No. 20 C 6478, 2021 WL 2291075, at *9 (N.D. Ill. June 4, 2021) (rejecting argument
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`that the complaint did not place the defendant on fair notice of the alleged copyright
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`infringement where the defendant “acknowledge[d] that its defense will include a ‘comparison of
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`the Uniface Software Program to Sysmex’s WAM Software,’ thereby suggesting Sysmex is
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`aware of what it is accused of copying” (citation omitted)). Thus, the Court finds that Plaintiffs’
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`complaint provides the Moving Defendants with sufficient notice of the grounds upon which the
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`copyright infringement claim rests.
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`The Moving Defendants next challenge the validity of the copyright, arguing that the
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`Fidget Cube product involves an uncopyrightable functional industrial design. See Am. Dental
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`Ass’n v. Delta Dental Plans Ass’n, 126 F.3d 977, 980 (7th Cir. 1997) (“Congress permits works
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`of art, including sculptures, to be copyrighted, but does not extend the copyright to industrial
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`design, which in the main falls into the province of patent, trademark, or trade dress law. When
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`the maker of a lamp—or any other three-dimensional article that serves some utilitarian office—
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`seeks to obtain a copyright for the item as a sculpture, it becomes necessary to determine
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`whether its artistic and utilitarian aspects are separable. If yes, the artistic elements of the design
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`may be copyrighted; if no, the designer must look outside copyright law for protection from
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`imitation.” (citations omitted)). But here, Plaintiffs have attached the copyright registration,
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`which “constitutes prima facie evidence of the validity of a copyright.” Wildlife Express Corp.
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`v. Carol Wright Sales, Inc., 18 F.3d 502, 507 (7th Cir. 1994). Thus, at the motion to dismiss
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`stage, the Court accepts Plaintiffs’ allegations that they have obtained a valid copyright for the
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`Fidget Cube product and leaves the question of the validity of the copyright for a more
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`developed record. See Mid Am. Title Co., 991 F.2d at 422–23 (determining validity of a
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`copyright “at the pleading stage will often be impossible” and is “more properly addressed at the
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`5
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`Case: 1:22-cv-01801 Document #: 80 Filed: 12/05/22 Page 6 of 10 PageID #:3718
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`summary judgment stage”); Symbria, Inc. v. Callen, No. 20-CV-4084, 2022 WL 60530, at *14
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`(N.D. Ill. Jan. 6, 2022) (“[B]ecause Symbria alleges it owns copyright registrations for all of the
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`aforementioned works, this Court presumes its works possess the minimal originality necessary
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`to establish ownership of a valid copyright. Symbria need not allege more at the pleadings stage
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`to demonstrate ownership of a valid copyright.” (citation omitted)).
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`Finally, the Moving Defendants argue that Plaintiffs have not sufficiently alleged that the
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`Moving Defendants copied the original product. The Court may infer copying from allegations
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`that the Moving Defendants had an opportunity to copy the original, referred to as “access,” and
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`that the works in question are “substantially similar” to each other, or, in other words, “that the
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`two works share enough unique features to give rise to a breach of the duty not to copy another’s
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`work.” 2 Peters v. West, 692 F.3d 629, 633–34 (7th Cir. 2012). The Moving Defendants argue
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`that their products are distinguishable from the Fidget Cube product, negating any finding of
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`substantial similarity. The Moving Defendants highlight the following differences: (1) the
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`Moving Defendants’ products have a truncated cube shape, which adds additional sides and
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`designs to the product; (2) the features on the sides of the Moving Defendants’ products are
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`different, as evidenced most obviously by a high joystick that the Fidget Cube does not have; and
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`(3) the Moving Defendants’ products use different color schemes and paintings. Plaintiffs
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`respond that that these amount to “superficial distinctions” that ignore the relevant inquiry. Doc.
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`69 at 10–11; see Wildlife Express Corp., 18 F.3d at 511 (finding that differences in color and
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`type of material used “are of minor importance in the overall artistic expression . . . and,
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`consequently, they do not preclude a finding of infringement,” collecting cases); Atari, Inc. v. N.
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`Am. Philips Consumer Elecs. Corp., 672 F.2d 607, 618 (7th Cir. 1982) (“Although numerous
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`2 The Moving Defendants do not challenge the access element of copying, and so the Court does not
`address that here.
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`6
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`Case: 1:22-cv-01801 Document #: 80 Filed: 12/05/22 Page 7 of 10 PageID #:3719
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`differences may influence the impressions of the ordinary observer, ‘slight differences between a
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`protected work and an accused work will not preclude a finding of infringement’ where the
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`works are substantially similar in other respects. Exact reproduction or near identity is not
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`necessary to establish infringement.” (citations omitted)), superseded on other grounds as
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`recognized in Scandia Down Corp. v. Euroquilt, Inc., 772 F.2d 1423 (7th Cir. 1985).
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`The Seventh Circuit has made clear that district courts can address substantial similarity
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`on a Rule 12(b)(6) motion, considering in great detail whether a plaintiff has plausibly alleged
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`that a defendant’s work infringes on a copyright. See, e.g., Hobbs v. John, 722 F.3d 1089, 1096
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`(7th Cir. 2013) (holding, “as a matter of law,” that two songs are not “substantially similar” and
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`affirming the dismissal of copyright claims on a motion to dismiss); Peters, 692 F.3d at 636
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`(concluding that a plaintiff’s “claim for copyright infringement fails as a matter of law” at the
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`motion to dismiss stage). But here, the Court does not have sufficient information before it to
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`make that determination as a matter of law. Instead, Plaintiffs have plausibly alleged that the
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`Moving Defendants’ and Plaintiffs’ products share enough unique features to be considered
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`substantially similar. See Joint Comm’n on Accreditation of Healthcare Orgs. v. Fortis Business
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`Media, No. 16 C 04724, 2017 WL 3895594, at *7 (N.D. Ill. Sept. 6, 2017) (“First, the Court is
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`ruling on a motion to dismiss; the question here is not whether the plaintiff has proven
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`substantial similarity but whether it has alleged sufficient facts to make such a claim plausible.
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`That Fortis can identify differences between the works is a matter for consideration by a finder of
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`fact at a later juncture. And second, a defendant cannot escape liability simply by adding more
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`material to his infringing work ‘if in other respects, similarity as to a substantial element of
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`plaintiff’s work can be shown.’” (citation omitted)). Therefore, Plaintiffs may proceed on their
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`copyright infringement claim against the Moving Defendants.
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`7
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`Case: 1:22-cv-01801 Document #: 80 Filed: 12/05/22 Page 8 of 10 PageID #:3720
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`II.
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`False Designation and IUDTPA Claims (Counts II and III)
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`Plaintiffs’ false designation of origin and IUDTPA claims involve the same elements, and
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`so the Court analyzes them together. See Neuros Co. v. KTurbo, Inc., 698 F.3d 514, 523
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`(IUDTPA is “a statute generally thought indistinguishable from the Lanham Act except of course
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`in its geographical scope”); Monster Energy Co. v. Zheng Peng, No. 17-cv-414, 2017 WL
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`4772769, at *3 (N.D. Ill. Oct. 23, 2017) (false designation of origin and IUDTPA claims
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`“involve the same elements”). To adequately state a claim for false designation of origin under
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`§ 1125(a), Plaintiffs must allege “(1) that its mark is protectable, and (2) that the defendant’s use
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`of that mark is likely to cause confusion among consumers.” Phoenix Ent’mt Partners v.
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`Rumsey, 829 F.3d 817, 822 (7th Cir. 2016).
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`The Moving Defendants first argue that Plaintiffs have not alleged a protectable
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`trademark. Plaintiffs do not claim that they have a registered trademark for the phrase “fidget
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`cube.” Nonetheless, § 1125(a) applies to unregistered marks that are sufficiently distinctive to
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`warrant protection under the Lanham Act. Matal v. Tam, --- U.S. ----, 137 S. Ct. 1744, 1752
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`(2017) (“[E]ven if a trademark is not federally registered, it may still be enforceable under
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`§ 43(a) of the Lanham Act, which creates a federal cause of action for trademark
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`infringement.”); George G, LLC v. George Charles Salon Inc., No. 1:21-cv-02651, 2022 WL
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`823882, at *3 (N.D. Ill. Mar. 18, 2022) (“An unregistered mark can form the basis of a
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`trademark infringement claim where the plaintiff demonstrates that the ‘mark [i]s distinctive
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`enough to warrant protection under the Lanham Act and that it has proper ownership of the
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`mark.’” (alteration in original) (citation omitted)). “Marks are classified into five categories of
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`increasing distinctiveness: (1) generic, (2) descriptive, (3) suggestive, (4) arbitrary, and
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`(5) fanciful,” with the last three “automatically entitled to trademark protection because they are
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`8
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`Case: 1:22-cv-01801 Document #: 80 Filed: 12/05/22 Page 9 of 10 PageID #:3721
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`inherently distinctive.” Platinum Home Mortg. Corp. v. Platinum Fin. Grp., Inc., 149 F.3d 722,
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`727 (7th Cir. 1998). Generic terms, i.e., commonly used terms that do not identify a particular
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`source, are not entitled to trademark protection. Id. And descriptive terms, i.e., those that
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`“describe[ ] the ingredients, qualities, or characteristics of an article of trade or a service,” enjoy
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`trademark protection only if the terms have acquired secondary meaning. Id. Secondary
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`meaning occurs where the mark has become “uniquely associated with a specific source.” Two
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`Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 766 n.4 (1992).
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`The Moving Defendants argue that the term “fidget cube” is generic, or at least a
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`descriptive term that has not acquired secondary meaning, and so is not entitled to trademark
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`protection. While distinctiveness is ordinarily a factual question, Uncommon, LLC v. Spigen,
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`Inc., 926 F.3d 409, 420 (7th Cir. 2019), here, Plaintiffs have failed to set forth anything more
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`than conclusory allegations suggesting that the term “fidget cube” is not generic and rather
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`qualifies as a descriptive term that has acquired secondary meaning, despite having had the
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`additional opportunity to do so in their response to the motion to dismiss. Indeed, Plaintiffs
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`completely ignored the Moving Defendants’ arguments as to the protectability of the claimed
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`mark in their response, effectively conceding the point. See Alioto v. Town of Lisbon, 651 F.3d
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`715, 721 (7th Cir. 2011) (a party waives an argument “by not responding to alleged deficiencies
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`in a motion to dismiss”); Grayson v. City of Aurora, 157 F. Supp. 3d 725, 748 (N.D. Ill. 2016)
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`(“[Plaintiff] failed to address the Defendants’ challenge to his ability to prove the third element
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`of his spoliation claim and has accordingly waived any argument.”). Plaintiffs’ allegations must
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`“raise a right to relief above the speculative level,” Twombly, 550 U.S. at 555, and they have not
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`Case: 1:22-cv-01801 Document #: 80 Filed: 12/05/22 Page 10 of 10 PageID #:3722
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`done so here with respect to the existence of a protectable mark. Therefore, the Court dismisses
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`Plaintiffs’ false designation and IUDTPA claims without prejudice.3
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`CONCLUSION
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`For the foregoing reasons, the Court grants in part and denies in part the Moving
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`Defendants’ motion to dismiss [52]. The Court dismisses the false designation and IUDTPA
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`claims (Counts II and III) without prejudice.
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`Dated: December 5, 2022
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`______________________
`SARA L. ELLIS
`United States District Judge
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`3 Because the Court concludes that Plaintiffs have not sufficiently alleged a protectable mark, the Court
`does not address the Moving Defendants’ arguments as to likelihood of confusion. If Plaintiffs seek to
`amend their complaint against the Moving Defendants to reallege the false designation and IUDTPA
`claims, however, the Court encourages Plaintiffs to consider whether they should provide additional
`allegations as to likelihood of confusion. See Fortres Grand Corp. v. Warner Bros. Entm’t Inc., 763 F.3d
`696, 700 (7th Cir. 2014) (“Allegations of consumer confusion in a trademark suit, just like any other
`allegations in any other suit, cannot save a claim if they are implausible.”).
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