Apple Inc. has been sued in federal court in Waco by a Texas entrepreneur who claims the tech behemoth stole her design for emoji that reflect ethnic diversity by allowing a user to choose one of five skin tones.
The suit, filed in September by Cub Club Investment (CCI), a company owned and operated by Katrina A. Parrott of League City, accuses Apple of copyright infringement, trade dress infringement, unfair competition, misappropriation and unjust enrichment. It seeks a jury trial, a permanent injunction against Apple, and unspecified damages.
According to the suit, Parrott was inspired to create her racially diverse emoji by her daughter, who asked, “Wouldn’t it be nice to have emoji that look like the person sending them?” In 2013, through CCI, Parrott created iDiversions, “the world’s first diverse emoji,” principally images of human faces and hands in five skin tones meant to represent African -Americans, people of Asian descent, Native Americans, Latinos/Latinas, and Caucasians.
After selling her emoji sets on the Apple App Store, the suit says, she approached Apple executives about a business partnership between her company and theirs. In October 2014, the suit says, she was informed that Apple “did not see an opportunity to partner with CCI” and that Apple instead was launching its own set of ethnically diverse emoji “based on iDiversions emoji.” When the Apple emoji were released in April 2015, the suit says, sales of the CCI version declined.
Apple did not respond to an email request for comment.
In a pending motion to dismiss filed Nov. 24, the company said its set of emoji in five skin tones is substantially different from those created by CCI and, therefore, no copyright infringement occurred.
“Copyright protects only the expression of ideas, not the ideas themselves,” the defense motion says. Apple’s skin-tone emoji, it adds, are “in a different suite of five colors, featuring different renditions of the real-world objects depicted: differently contoured figures, differently angled thumbs, and so on.”
The company has also requested that the case be transferred from Waco to the Northern District of California, where Apple is headquartered.
In the past two years, the federal courthouse in Waco has become a national hub of intellectual property litigation –, notably (but not solely) patent disputes. The number of patent cases filed there has exploded since the appointment two years ago of U.S. District Judge Alan Albright, a former patent litigator for Fish & Richardson and Bracewell. (Parrott’s suit is not a patent case; her complaint notes, however, that she has three U.S. patent applications pending for her emoji.)
Since assuming the bench in September 2018, Albright has actively and publicly encouraged patent litigants to file their cases before him. As Waco’s only district judge, he automatically assumes jurisdiction if an IP plaintiff filing suit anywhere in the sprawling Western District requests that it be tried in Waco, as opposed to, for example, Austin, San Antonio, Midland-Odessa, or El Paso. The Western District is, arguably, often an appropriate venue for such cases because so many tech firms have a physical presence in Austin.
“I took this job in Waco because I thought it was the perfect place to try and establish a serious venue for sophisticated patent litigation, and it has proven to be just that,” the judge told the Waco Tribune-Herald in January of this year.
He added: “There is nothing I enjoy more than working on patent cases. I think, by and large, the lawyers are exceptional and the issues before me are always intellectually challenging. … When people file here, I think they can feel comfortable with my 20 years in patent experience … that they will get a fair process with someone who knows what he is doing.”
CCI is represented in the lawsuit by B. Todd Patterson, Craig K. Ribbeck of The Ribbeck Law Firm in Houston, John A. Yates, and Kyrie Cameron of Patterson & Sheridan in Houston; and Abelino Reyna of Patterson & Sheridan in Waco.
Apple is represented by Paige Arnette Amstutz and Sameer Hashmi of Scott, Douglass & McConnico in Austin; Elana Nightingale Dawson and Carolyn Homer of Latham & Watkins in Washington, D.C.; Andrew Gass of Latham & Watkins in San Francisco; and Gabriel S. Gross of Latham & Watkins in Menlo Park, California.