Apple Finally Defeats Dumb Diverse Emoji Lawsuit One Year Later
from the smiley-face dept
Roughly a year ago, we discussed a wildly silly lawsuit brought against Apple by a company called Cub Club and an individual, Katrina Parrott. At issue were “diverse emojis”, which by now are so ubiquitous as to be commonplace. Parrott had created some emojis featuring more diverse and expansive color/skin tones. And, hey, that’s pretty cool. The problem is that, after she had a meeting with Apple about her business, Apple decided to simply incorporate diverse skin tones into its existing emojis. The traditional yellow thumbs up hand suddenly came with different coloration options. Cub Club and Parrott sued, claiming both copyright and trademark infringements.
We said at the time we covered Apple’s motion to dismiss that there was very, very little chance of this lawsuit going anywhere. The trademark portion was completely silly, given that Apple wasn’t accused of any direct copying, but merely of copying the idea of diverse emojis. Since ideas aren’t afforded copyright protection, well, that didn’t seem like much of a winner. The trade dress claims made even less sense, since they were levied over the same content: Apple’s diverse emojis. The argument from Parrott was that Apple having diverse emojis would confuse the public into thinking it had contracted with Cub Club. But that isn’t how the law works. The thing you’re suing over can’t be a functional part of the actual product. In this case, that’s literally all it was.
And so it is not particularly surprising that I’m able to up date you all that the court has dismissed the case a year later.
Apple Inc convinced a California federal judge on Wednesday to throw out a lawsuit accusing the tech giant of ripping off another company’s multiracial emoji and violating its intellectual property rights.
Cub Club Investment LLC didn’t show that Apple copied anything that was eligible for copyright protection, U.S. District Judge Vince Chhabria said.
Chhabria gave Cub Club a chance to amend its lawsuit but said he was “skeptical” it could succeed based on several differences between its emoji design and Apple’s.
The analysis you’ll see in the order embedded below basically follows our previous analysis. On the copyright claim, the judge points out that the idea of diverse emojis cannot be copyrighted and, since the accusation about similarity between the emojis themselves is made in an area where very little differences could exist, this doesn’t amount to copyright infringement.
Chhabria said in a Wednesday order that even if the complaint was true, Apple at most copied Cub Club’s unprotectable “idea” of diverse emoji.
“There aren’t many ways that someone could implement this idea,” Chhabria said. “After all, there are only so many ways to draw a thumbs up.”
Exactly. As to the trade dress portion of this, well, there again the court found that the trade dress accusation concerned non-protectable elements.
To state a claim for trade dress infringement, a plaintiff must allege that “the trade dress is nonfunctional, the trade dress has acquired secondary meaning, and there is substantial likelihood of confusion between the plaintiff’s and defendant’s products.” Art Attacks Ink, LLC v. MGA Entertainment Inc., 581 F.3d 1138, 1145 (9th Cir. 2009). The trade dress alleged in the complaint is functional. The asserted trade dress consists of “the overall look and feel” of Cub Club’s “products,” including “the insertion of an emoji into messages . . . on mobile devices by selecting from a palette of diverse, five skin tone emoji.” This is functional in the utilitarian sense…
Again, right on point.
At the end of the day, while it’s true that’s it’s easy to point at any civil lawsuit and call it a money grab, it’s hard to see how this one isn’t. There’s simply nothing in any of this that’s particularly unique or novel, even though I grant that it’s a good thing there is more representation options in emojis.
Filed Under: diverse emoji, diversity, emoji, katrina parrott, trade dress
Companies: apple, cub club
Comments on “Apple Finally Defeats Dumb Diverse Emoji Lawsuit One Year Later”
Emojis were more "representative" when they were simply emoticons (aka the "idea").
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I almost preferred it when "emojis" were monochrome. It came close to the ideal of "On the Internet, everybody is green on a black background.". Then came color and images and audio and video and all the stupid judgements made based on what someone looked or sounded like, not on the content of what they were saying, and all the workarounds to try and compensate for all the stupid judgements of people who don’t want their stupid judgements compensated for… /sigh
Alien passport officer: "Race? Look, do you know how many species there are in the galaxy? And how many sub-groups of those there are who claim to be a different "race" from all the other sub-groups even when members of that sub-group can’t tell the difference between sub-groups without already knowing who is what? If we tried to include "race" on the forms, the section would be 800 pages long and you still couldn’t make sense of it. So your race is "human" and we really don’t care what the melanin content of your skin is, live with it, have a nice day, NEXT!"
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As opposed to the stupid judgements made based on the assumption that everyone was the "default" white male?
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Yep, but at least it gave everybody the advantages that came with being assumed to be a white male at the same time.
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What was that meme again? Oh yeah, it goes something like
For all I know (and I don’t), each and everyone of you could be a white male – how am I supposed to figure out any differently.
So commonplace as to be ubiquitous, surely?