Apple Seeks Dismissal of Skin Tone Emoji IP Case

On Nov. 24, Apple, Inc. moved to dismiss a suit claiming that emojis depicting body parts in various skin tones, which the company created in 2015, infringe on those of an almost-collaborator. Cub Club Investment, LLC sued Apple earlier this year for federal copyright and trade dress infringement regarding its emojis depicting human body parts, like a hand making a thumbs-up sign, as excerpted below from Apple’s motion to dismiss.

Apple’s motion closely follows another it submitted on the same day to transfer the case from the Western District of Texas to the Northern District of California. Cub Club’s September complaint made five claims against Apple, including unfair competition, misappropriation, and unjust enrichment in addition to federal law contentions.

In particular, “Cub Club asserts that Apple’s emoji infringe the copyrights in Cub Club’s emoji, on the theory that Cub Club’s exclusive rights prevent anyone else from offering emoji depicting the same body part as Cub Club’s emoji, in five different hues,” Apple’s filing states. According to the defendant, however, Cub Club seeks to protect something, an idea, specifically, “the idea of applying five different skin tones to emoji” which it says is fundamentally not copyrightable.

Apple contended that far from claiming infringement on the idea of diverse skin tone emojis, the graphics’ “line elements (i.e., the outlines of a human hand) are the only aspect of Cub Club’s emoji that are even arguably subject to copyright protection.”

In response to Cub Club’s trade dress allegation and related state law claims, Apple argued that the plaintiff has failed to satisfy the claim elements. The defendant contended that Cub Club’s complaint neither seeks to protect something non-functional nor something that serves “as an indicator of the source of goods or services.”

Apple argueed that the trade dress the plaintiff seeks to protect is “plainly functional: a smartphone interface that lets users select and insert emoji ‘when sending messages on an Apple iPhone.’” In turn, Apple contended that Cub Club has failed to state a claim upon which relief can be granted and sought dismissal of all of its allegations.

Apple is represented by Scott Douglass & Mcconnico LLP and Latham & Watkins LLP. Cub Club is represented by Patterson + Sheridan LLP.