Cub Club Investment Responds to Apple’s Dismissal Bid in Skin Tone Emoji Copyright Case

Cub Club Investment LLC (CCI) argued the Apple Inc.’s dismissal bid is meritless and seeks to prematurely resolve the legal contentions of its lawsuit concerning diverse emoji. Wednesday’s Northern District of California opposition responds to Apple’s renewed dismissal motion, originally filed in November 2020 in the case’s previous district, the Western District of Texas.

The suit brought copyright infringement, trade dress infringement, and trade dress common law claims, and argues that Apple copied unique and distinctive elements of CCI’s “iDiversicons” application and emoji. The filings are replete with comparative examples of CCI and Apple’s emoji, like those representing a thumbs-up, fist bump, or wave. CCI alleges that both individual and overall selections of CCI and its owner and founder Katrina Parrott’s works are protected by federal copyright laws.

Apple moved to dismiss the suit on the same day it asked the Texas court to move the case to San Jose, California. The Texas court agreed and the case is now proceeding in the transferee district. 

In its refreshed motion to dismiss, Apple principally argues that CCI seeks to exercise an exclusive right over the general concept of applying different skin tones to emoji, an “unprotectable idea.”

According to this week’s opposition, Apple’s contention is wrong. Furthermore, CCI alleges that the argument is “disingenuous as well as cynical, as Apple has sought to copyright these same expressions [itself].”

CCI defends that it has adequately stated a claim for copyright infringement because it meets the two-part standard. In particular, the plaintiff alleges that the complaint states, on its face, that “Apple’s ‘diverse emoji’ are substantially similar to CCI’s Copyrighted Works” based on overlap in shape and stylistic renderings, unique and original color selections, and specific contours and shading, among other things.

In its 31-page opposition, CCI also contends it has pleaded a claim for trade dress infringement. In this regard, the company asserts that it has sufficiently defined its trade dress, that the dress is non-functional, and that the plaintiff has alleged secondary meaning. Should the court find deficiencies in CCI’s complaint, the plaintiff asks for leave to amend.

Briefing is set to conclude on October 20, and the motion hearing is scheduled for Jan. 27, 2022 before Judge Lucy H. Koh.

CCI is represented by Patterson + Sheridan LLP and The Ribbeck Law Firm LPPC. Apple is represented by Scott Douglass & Mcconnico LLP and Latham & Watkins LLP.