Cub Club Investment Responds to Apple’s Termination Offer in Skin Tone Emoji Copyright Case

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Cub Club Investment LLC (CCI) has argued that Apple Inc.’s layoff offer is without merit and seeks to prematurely resolve the legal claims in its lawsuit regarding various emoji. The Northern District of California opposition responded to Apple’s new dismissal petition on Wednesday, initially filed in November 2020 in the case’s previous district, the Western District of Texas.

The lawsuit has sued for copyright infringement, trade dress infringement and customary trade dress law, and claims that Apple copied unique and distinctive elements from the “iDiversicons” app and CCI emoji. The documents are full of comparative examples of emoji from CCI and Apple, such as those depicting a thumbs-up, punch, or wave. CCI alleges that the individual and aggregate selections of works by CCI and its owner and founder Katrina Parrott are protected by federal copyright laws.

Apple decided to dismiss the action the same day it asked the Texas court to move the case to San Jose, California. The Texas court agreed and the case is currently pending in the Assignees District.

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

According to this week’s opposition, Apple’s claim is false. Further, CCI alleges that the argument is “spurious and cynical because Apple has sought to protect the copyright in these same expressions. [itself]. “

CCI submits that it has sufficiently made a copyright infringement claim because it meets the two-part standard. In particular, the plaintiff alleges that the complaint indicates, on its face, that “Apple’s ‘various emoji’ are substantially similar to the copyrighted works of CCI” on the basis of overlapping forms and renderings stylistic, unique and original color selections, and specific outlines and shading, among others.

In its 31-page opposition, CCI also argues that it has argued a trade dress infringement claim. In this regard, the company claims that it has sufficiently defined its trade dress, that the clothing is not functional, and that the plaintiff allegedly has a secondary meaning. If the court finds deficiencies in CCI’s complaint, the plaintiff requests leave to amend.

The briefing is scheduled to end on October 20 and the hearing of the motion is scheduled for January 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.


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