Case 3:21-cv-02304-LB Document 42 Filed 09/20/21 Page 1 of 4
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`San Francisco Division
`
`O'SHEA JACKSON,
`Plaintiff,
`
`v.
`
`ROBINHOOD MARKETS, INC., A
`DELAWARE CORPORATION, et al.,
`Defendants.
`
`
`
`Case No. 21-cv-02304-LB
`
`
`ORDER GRANTING DEFENDANTS'
`MOTION TO DISMISS FIRST
`AMENDED COMPLAINT
`Re: ECF No. 31
`
`INTRODUCTION
`The plaintiff O’Shea Jackson, known professionally as Ice Cube, sued Robinhood, a financial-
`services company, after Robinhood used his image and a paraphrase of a line from his song, “Check
`Yo Self.” The graphic and caption illustrate Robinhood’s online article describing a market
`correction for tech stocks. The original line from Ice Cube’s song is “Check yo self before you wreck
`yo self,” which Robinhood paraphrased as “Correct yourself before you wreck yourself.” “Check yo
`self” is also Ice Cube’s catchphrase. He claims that by using his image and catchphrase, Robinhood
`created the false and deceptive commercial impression that Ice Cube endorses Robinhood’s services
`and violated the Lanham Act. 15 U.S.C. § 1125(a)(1)(A).1 The court previously dismissed the case
`
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`1 First Am. Compl. (FAC) – ECF No. 30. Knievel v. ESPN, 393 F.3d 1068, 1076–77 (9th Cir. 2005)
`(incorporation-by-reference doctrine allows citation to song). Citations refer to material in the Electronic
`Case File (ECF); pinpoint citations are to the ECF-generated page numbers at the top of documents.
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`ORDER – No. 21-cv-02304-LB 
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`Case 3:21-cv-02304-LB Document 42 Filed 09/20/21 Page 2 of 4
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`for lack of standing because the plaintiff did not plausibly plead that Robinhood’s use of Ice Cube’s
`identity suggested his endorsement of Robinhood’s products. The amended complaint does not cure
`the previous complaint’s deficiencies. The court thus grants Robinhood’s motion to dismiss.
`
`
`STATEMENT
`The previous dismissal order summarized the allegations about the alleged endorsement. In
`short, Robinhood is a financial-services company that allows commission-free trades of stocks and
`exchange-traded funds on a mobile app. Ice Cube is a well-known rapper, actor, entrepreneur, and
`social activist. Robinhood has a website called Robinhood Snacks, where it publishes newsletters on
`financial issues. To illustrate a newsletter on a market correction of tech stocks, Robinhood used a
`picture from Ice Cube’s movie Are We Done Yet? and a caption that paraphrased Ice Cube’s
`catchphrase.2
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`Correct yourself, before you wreck yourself
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`
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`2 Order – ECF No. 29 at 2–4 (describing the newsletter, including its breezy tone and other content:
`articles, the daily Snacks podcast, and links to categories titled Check, Learn, Sweat, Do, Act, and
`Achieve). This order incorporates the previous order’s summary and legal analysis by this reference.
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`ORDER – No. 21-cv-02304-LB
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`Case 3:21-cv-02304-LB Document 42 Filed 09/20/21 Page 3 of 4
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`The amended complaint cites congressional testimony and SEC filings to illustrate that
`Robinhood Snacks is a commercial product that entices new users to sign up for the app and offers
`digestible educational content that also satisfies certain financial regulatory requirements.3 It adds
`allegations about its demographics and the appeal of celebrities like Ice Cube (and its celebrity
`endorsers Jay-Z, Nas, and Snoop Dog) to support the point that using Ice Cube’s picture and phrase
`created consumer confusion and suggested Ice Cube’s endorsement of its products.4
`All parties consented to magistrate jurisdiction under 28 U.S.C. § 636.5 The court has federal-
`question jurisdiction over the Lanham Act claim. 28 U.S.C. §§ 1331, 1338. The court held a hearing
`on September 9, 2021.
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`ANALYSIS
`The amended complaint falls for the same defect found in the original: it does not sufficiently
`plead an injury in fact because Robinhood’s use of Ice Cube’s image and phrase does not suggest
`Ice Cube’s endorsement of Robinhood’s product.
`Ice Cube is a celebrity. If the unauthorized use of his image suggested his endorsement of
`Robinhood, then he would suffer injury in fact. But the image and phrase are not an endorsement:
`they illustrate a point in the newsletter about a market correction in tech stocks.6 No case finds
`endorsement on similar facts. Instead, the case law requires more than alleged unauthorized use to
`plead implied endorsement. Examples of well-plead endorsement include imitating Tom Waits’s
`distinctive voice to sell Doritos and using a robot Vanna White to sell VCRs. Waits v. Frito-Lay,
`Inc., 978 F.2d 1093, 1110 (9th Cir. 1992) (“a celebrity whose endorsement of a product is implied
`through the imitation of a distinctive attribute of the celebrity’s identity [the imitation of Tom
`Waits’s distinctive voice in a Doritos radio commercial] has standing to sue for false endorsement
`under section 43(a) of the Lanham Act”); White v. Samsung Elec. Am., Inc., 971 F.2d 1395, 1398–
`99 (9th Cir. 1992) (finding the depiction of a robot modeled after and dressed as Vanna White and
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`3 FAC – ECF No. 30 at 5–9 (¶¶ 25–32).
`4 Id. at 4 (¶ 3), 7 (¶ 30), 10–12 (¶¶ 37–42).
`5 Consents – ECF Nos. 8 & 15.
`6 Order – ECF No. 29 at 7–8.
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`ORDER – No. 21-cv-02304-LB
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`Case 3:21-cv-02304-LB Document 42 Filed 09/20/21 Page 4 of 4
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`posed next to the product was proof of implied endorsement sufficient to raise a triable issue of
`fact);; see also Estate of Fuller v. Maxfield & Oberton Holdings, LLC, 906 F. Supp. 2d 997, 1002
`(N.D. Cal. 2012) (denying the motion to dismiss as the defendant’s alleged use of the inventor’s
`name to promote a desk toy modeled after the inventor’s discovery implied endorsement); Monk v.
`N. Coast Brewing Co. Inc., No. 17-cv-05015-HSG, 2018 WL 646679, at *1, 3 (N.D. Cal. Jan. 31,
`2018) (consistent use of Thelonious Monk’s name image, and likeness on the beer bottles and
`packaging plausibly plead implied endorsement).
`The new allegations do not add facts that create any likelihood of consumer confusion. For the
`reasons in the court’s earlier order, the court dismisses the complaint for lack of Article III standing.
`Because the court gave leave to amend previously, and the plaintiff did not cure the complaint’s
`deficiencies, the dismissal is with prejudice.
`This disposes of ECF No. 31.
`IT IS SO ORDERED.
`Dated: September 20, 2021
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`______________________________________
`LAUREL BEELER
`United States Magistrate Judge
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`ORDER – No. 21-cv-02304-LB
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