Stock trading platform Robinhood has responded to celebrity Ice Cube, also known as O’Shea Jackson Jr., arguing that his renewed pleading once again fails to state a claim. Ice Cube’s case against the platform accuses it of illegally using his catchphrase and likeness in a photograph and caption featured in one of Robinhood’s March newsletters. His pared down complaint, filed after the court dismissed his first for want of standing, states one claim for trademark infringement under the Lanham Act.
In mid-June Magistrate Judge Laurel Beeler dismissed Ice Cube’s complaint against Robinhood Markets Inc. and Robinhood Financial, LLC after finding that though the filing plausibly alleged the rapper’s celebrity status and economic injury, it did not plausibly plead that the use of his identity was an endorsement. The court explained that the photograph and caption concerned market corrections, a topic discussed in that day’s financial newsletter. The display, she reasoned, did not plausibly suggest that Ice Cube actually endorsed Robinhood.
Ice Cube refiled his trademark complaint in early July, this time omitting his California state law claims. According to Robinhood, the new pleading “appears to be a thinly disguised motion for reconsideration,” and falls short for the same and additional reasons.
Robinhood, in its filing, reiterates contentions that the plaintiff lacks standing because he cannot prove that Robinhood’s use of his image and lyrical paraphrase amount to an endorsement. Instead of actual facts, Ice Cube offers only “conclusory legal conclusions,” to support his endorsement argument, the motion said.
Among other things, the defendants argue that the free financial newsletter constitutes non-commercial conduct that cannot serve as the basis for Ice Cube’s trademark infringement claim, as the Lanham Act only protects commercial interests. The motion posits a question to further illustrate its point, “How can publishing a free educational article amount to commercial activity when the article is ‘demonstrably not an advertisement’ and does not require, solicit, or encourage any transaction at all?”
The defendants request that the court dismiss the amended pleading with prejudice because they claim that its legal deficiencies are incurable. Robinhood is represented by Brownstein Hyatt Farber Schreck LLP and Ice Cube by Freedman & Taitelman LLP.