`
`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`
`Cub Club Investment, LLC,
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`
`
`
`
`Plaintiff,
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`Case No. 6:20-cv-856
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`v.
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`
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`Apple, Inc.,
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`
`
`Defendant.
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`JURY TRIAL DEMANDED
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`
`
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`ORIGINAL COMPLAINT FOR COPYRIGHT INFRINGEMENT
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`Plaintiff Cub Club Investment, LLC (“CCI” or “Plaintiff”) files this Original Complaint
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`for Copyright Infringement against Defendant Apple, Inc. (“Apple” or “Defendant”).
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`NATURE OF THE ACTION
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`1.
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`This is an action for copyright infringement arising under the Copyright Act of
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`1976, 17 U.S.C. §§ 101 et seq. This action involves U.S. Copyright Registration Nos. VAu 001-
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`204-290, VAu 001-186-920, VAu 001-152-200, VAu 001-152-192, VAu 001-152-187, VAu 001-
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`180-102, and VAu 001-152-204 (collectively, “Works”). See Ex. A. This action also involves
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`trade dress infringement, unfair competition, misappropriation, and unjust enrichment. This action
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`arises under the Copyright Act, the Lanham Act, Texas Business & Commerce Code, and state
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`common law, including the laws of Texas.
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`PARTIES
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`2.
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`Plaintiff CCI is a Texas limited liability company with its principal place of
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`business at 2912 Port Rose Lane, League City, Texas 77573. CCI is the owner by assignment of
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`the Works. CCI is owned and operated by Katrina A. Parrott.
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`3.
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`Defendant Apple, Inc. is a California corporation, and has a physical place of
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`business at 5505 W. Parmer Lane, Austin, Texas 78727. Apple is actively transacting business in
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`Texas. Apple’s Registered Agent for service of process is CT Corporation System, located at 1999
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`Bryan St., Suite 900, Dallas, Texas 75201.
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`JURISDICTION AND VENUE
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`4.
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`This Court has original subject matter jurisdiction over this action in accordance
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`with 28 U.S.C. §§ 1331 and 1338(a) because this action arises under the Copyright Act of 1976,
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`17 U.S.C. §§ 101 et seq. and the Lanham Act, 15 U.S.C. § 1125. Additionally, this Court has
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`supplemental jurisdiction over this action in accordance with 28 U.S.C. § 1367.
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`5.
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`This Court has personal jurisdiction over Apple because Apple maintains multiple
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`places of business in the State of Texas within this judicial district and has purposely availed itself
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`of the privileges and benefits of the laws of the State of Texas. Apple has continuous and
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`systematic business contacts with the State of Texas. Apple has a physical place located in the
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`district at 5505 W. Parmer Lane, Austin, Texas 78727. In addition, Apple Stores are located at
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`Barton Creek Mall (2901 S. Capital of Texas Hwy, Austin, TX 78746), at The Domain (3121 Palm
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`Way, Austin, TX 78758), at The Shops at La Cantera (15900 La Cantera Parkway, San Antonio,
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`TX 78256), and at North Star Mall (7400 San Pedro Avenue, San Antonio, TX 78216).
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`6.
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`Venue is proper in this district under 28 U.S.C. §§ 1391, 1400(a).
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`FACTUAL BACKGROUND
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`CCI’s Development of iDiversicons® Emoji
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`7.
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`Emoji are digital images or icons used to express an idea or emotion by the sender.
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`Emoji are ubiquitous in the digital age, including through communication on smartphones and
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`social media platforms. Before 2013, people had limited options of emoji to represent themselves,
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`especially in terms of race or color. In June 2013, Mrs. Katrina A. Parrott envisioned bringing
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`racial diversity into the realm of digital communication after her daughter raised the question,
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`“Wouldn’t it be nice to have emoji that look like the person sending them?” With this vision,
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`Mrs. Parrott developed an innovative solution and assembled a team to create emoji so that people
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`of all races, gender, orientations, and abilities can express themselves through an abundance of
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`diverse emoji. Mrs. Parrott founded CCI and created the iDiversicons® brand, the world’s first
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`diverse emoji.
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`8.
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`On October 11, 2013, iDiversicons® emoji were launched and released on the
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`Apple App Store with versions compatible on the iPhone, iPad, and iPod Touch. Additionally,
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`iDiversicons® emoji were released on Apple iTunes on December 20, 2014.
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`CCI’s Registered Copyrights and Other Intellectual Property
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`9.
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`CCI registered its first set of copyrighted works, covering emoji with five skin
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`tones, with the U.S. Copyright Office on July 31, 2013. Today, CCI holds over 20 registered
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`copyrights covering diverse emoji. See Ex. A. The Works are of great value to CCI and are used
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`daily by its numerous customers that own the application. CCI is the sole owner and proprietor of
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`all rights, title, and interest in and to the copyrights in the Works. The copyrights in the Works are
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`presently valid and subsisting and were valid and subsisting at all times affecting the matters
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`complained herein. The Works are a collection of creative, diverse emoji, including emoji with
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`five skin tones. Each of the five skin tones comprises one of African-American tone, Asian tone,
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`Latino/Hispanic tone, Indian tone, and Caucasian tone.
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`10.
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`Additionally, the innovative, diverse emoji created by CCI are the subject of three
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`pending applications before the U.S. Patent and Trademark Office, including utility and design
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`patent applications.
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`CCI’s Proposals to Unicode
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`11.
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`To make her solution accessible to consumers, CCI and Mrs. Parrott brought
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`iDiversicons® emoji to Silicon Valley beginning in 2013. Mrs. Parrott joined the Unicode
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`3
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`Consortium (“Unicode”) on November 5, 2013 and became actively involved with the Unicode
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`Technical Committee (“UTC”) as a means to raise awareness among technology leaders about the
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`digital diversity and inclusion issue. On April 9, 2014, Mrs. Parrott submitted to the UTC
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`document L2/14-085, titled “Request Approval to add ‘Our New iDiversicons: Diverse Emoji
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`Characters’ to the next updated Unicode Standard.” When Mrs. Parrott presented her proposal on
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`iDiversicons® emoji, its mission of bringing diverse emoji to the world, and its five skin tone
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`emoji standard at UTC Meeting 139 on May 7, 2014 in San Jose, California, technology leaders
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`praised her efforts, which sparked a deeper conversation among UTC members regarding the fact
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`that no one was seriously addressing this issue. The iDiversicons® emoji solution for advancing
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`the Unicode Standard to include diverse emoji gained traction at UTC meetings as Mrs. Parrott
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`continued to submit reports and proposals, including “Report on Diversity Emoji Use in
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`iDiversicons and Proposal to Add New Emoji from iDiversicons Collection to Unicode”;
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`“Applying Color Theory to the World of Emoji”; “Adding gender counterparts to emoji list?”1 At
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`UTC Meeting 141 on October 28, 2014, hosted by Apple in Sunnyvale, CA, Mrs. Parrott presented
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`her solution of using a color modifier pallet to implement the five skin tone options on digital
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`keyboards, a solution recognized and utilized globally.
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`12.
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`Unicode held the following UTC Meetings: UTC Meeting 139 from May 6 – 9,
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`2014 in San Jose, California; Unicode held UTC Meeting 140 from August 5 – 8, 2014 in
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`Redmond, Washington; UTC Meeting 141 from October 27 – 30, 2014 in Sunnyvale, California
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`(hosted by Apple); and UTC Meeting 142 from February 2 – 5, 2015 in Mountain View, California.
`
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`1 UTC document L2/14-154, titled “Report on Diversity Emoji Use in iDiversicons and Proposal
`to Add New Emoji from iDiversicons Collection to Unicode (revised)” (August 5, 2014); UTC
`document L2/14-204, titled “Applying Color Theory to the World of Emoji” (August 7, 2014);
`UTC topic L2/15-048 “Adding gender counterparts to emoji list?” (February 3, 2015).
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`13. Mrs. Parrott attended UTC Meetings 139, 140, 141, and 142.
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`14. Mrs. Parrott submitted the following documents to the UTC: document L2/14-085
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`titled “Request Approval to add ‘Our New iDiversicons: Diverse Emoji Characters’ to the next
`
`updated Unicode Standard” (April 9, 2014); document L2/14-085 titled “Request Approval to add
`
`‘Our New iDiversicons: Diverse Emoji Characters’ to the next updated Unicode Standard.” (May
`
`7, 2014); document L2/14-154 titled “Report on Diversity Emoji Use in iDiversicons and Proposal
`
`to Add New Emoji from iDiversicons Collection to Unicode (revised).” (August 5, 2014);
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`document L2/14-204 titled “Applying Color Theory to the World of Emoji.” (August 7, 2014);
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`topic L2/15-048 “Adding gender counterparts to emoji list?” (February 3, 2015).
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`5
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`CCI Internationally Recognized as Creator of Diverse Emoji
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`15.
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`CCI has sold its emoji app throughout the United States, including to customers in
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`the State of Texas. CCI has invested significant resources in the design, development, distribution,
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`advertising, and marketing of iDiversicons® emoji. The designs and features of the iDiversicons®
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`emoji, including the diverse skin colors on emoji representing various races and ethnicities, have
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`received widespread public attention.
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`16.
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`Since 2014, Mrs. Parrott has been internationally recognized as the creator of five
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`skin tone emoji, and she continues to be recognized as the pioneer in digital communication by
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`progressing diversity and inclusion through iDiversicons®. Co-founder and president of Unicode
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`Dr. Mark Davis praised Mrs. Parrott’s innovative work, saying, “Without you, we certainly
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`wouldn’t have come up with as good a solution!” American University recognized Mrs. Parrott
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`as a pioneer in diversity and inclusion, and the 2019 film “Picture Character: An Emoji
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`Documentary” featured iDiversicons® emoji. Additionally, numerous articles celebrate her
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`achievements, including: PCWorld, CNN, TexasMonthly, Black Enterprise, Women Leadership
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`Magazine USA, SEVENTEEN, The Daily Dot, Houston Chronicle, Puget Sound Business Journal,
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`Galveston Daily News, and Racing Toward Diversity. In 2015, the United Athletes Foundation
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`asked Mrs. Parrott to create a Ray Lewis emoji. This year, the Smithsonian National Museum of
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`African American History and Culture is considering iDiversicons® emoji as a potential feature
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`exhibit.
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`17.
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`The designs of iDiversicons® emoji have distinctive and non-functional features
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`that identify to consumers that the origin of the iDiversicons® emoji is CCI. As a result of at least
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`CCI’s continuous and exclusive use of the iDiversicons® emoji, CCI’s marketing, advertising, and
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`6
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`Case 6:20-cv-00856-ADA Document 1 Filed 09/18/20 Page 7 of 28
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`sales of iDiversicons® emoji, and the highly valuable goodwill and substantial secondary meaning
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`acquired as a result, CCI owns trade dress rights in the designs and appearances of the
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`iDiversicons® emoji, which consumers came to uniquely associate with CCI. CCI’s trade dress
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`rights in the designs and appearances of the iDiversicons® emoji are collectively referred to as
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`“CCI’s Trade Dress.”
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`18.
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`An exemplary image of iDiversicons® trade dress, shown below, demonstrates the
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`palette of diverse emoji available to users when sending messages on an Apple iPhone.
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`19.
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`Additional exemplary images of iDiversicons® emoji are shown below:
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`7
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`Discussions between CCI and Apple
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`
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`20.
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`Starting at a UTC meeting in May of 2014, Mrs. Parrott began discussing a potential
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`partnership between CCI and Apple concerning her copyrighted diverse emoji with Apple’s senior
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`software engineer and senior director.
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`21.
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`Apple participated in UTC meetings in 2013, 2014, and 2015, including UTC
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`Meetings 139, 140, 141, and 142.
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`22.
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`Apple representatives, including Peter Edberg, Apple Senior Software Engineer,
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`participated in UTC Meetings 139 and 140. Mr. Edberg also participated in UTC Meetings 141
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`and 142.
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`23.
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`On March 27, 2014, Mrs. Parrott sent a first letter by mail and email to Tim Cook,
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`CEO of Apple, requesting a meeting with Apple to discuss a potential partnership between CCI
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`and Apple.
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`24.
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`On April 9, 2014, Mrs. Parrot sent a second letter by mail and email to Mr. Cook
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`with additional information about iDiversicons® emoji along with images of at least 594
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`iDiversicons® emoji.
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`25.
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`On May 2, 2014, Mrs. Parrott sent an email to Mr. Cook requesting an in-person
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`meeting.
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`26.
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`During UTC Meeting 139, Mrs. Parrott met Mr. Edberg, and Mr. Edberg reviewed
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`iDiversicons® emoji and the iDiversicons® website.
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`27.
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`On or around May 7, 2014, Mr. Edberg helped coordinate a meeting between
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`Mrs. Parrott and Celia Vigil, Apple’s Senior Director for Frameworks and Fonts at the time.
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`28. Mr. Edberg helped coordinate the meeting between Mrs. Parrott and Mrs. Vigil to
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`explore partnership opportunities between Apple and CCI.
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`29.
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`On or around May 7, 2014, Mrs. Parrott provided Mr. Edberg a thumb drive with
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`over 100 iDiversicons® emoji, which Mr. Edberg uploaded to his laptop computer.
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`30.
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`On or around May 7, 2014, Mr. Edberg shared the uploaded emoji from Mrs.
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`Parrott’s thumb drive with Ms. Vigil during a staff meeting.
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`31.
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`On or around May 7, 2014, Mr. Edberg requested that Mrs. Parrott create (1) a
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`series of five skin tone female emoji to compliment the iDiversicons® male police officer and
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`construction worker emoji; and (2) a unicorn emoji based on requests from Apple product users.
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`32.
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`On May 8, 2014, Mrs. Parrott provided eleven new emoji to Mr. Edberg at the
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`Unicode meeting based on Mr. Edberg’s request on May 7, 2014.
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`33.
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`34.
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`On May 8, 2014, Mrs. Parrott met with Ms. Vigil.
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`On May 9, 2014, Mrs. Parrott sent Ms. Vigil an email with PDF versions of the
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`emoji that Mr. Edberg uploaded from Mrs. Parrott’s thumb drive.
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`35.
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`On May 9, 2014, Ms. Vigil replied to Mrs. Parrott stating, “Thank you for taking
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`the time to meet with me. I pointed my colleagues at your [iDiversicons®] application. I can also
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`show them the images you shared with Peter.”
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`36.
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`On May 9, 2014, Mr. Edberg sent Mrs. Parrott an email stating, “I hope we can
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`work out something between iDiversicons and Apple.”
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`37.
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`On May 23, 2014, Mr. Edberg sent Mrs. Parrott information regarding the Unicode
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`Standard.
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`38.
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`On June 9, 2014, Mrs. Parrott sent Mr. Edberg a draft research paper titled “Mobile
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`Diversity Research” (hereinafter, “Research Paper”) for his review.
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`39.
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`On June 12, 2014, Mr. Edberg responded to Mrs. Parrott’s email with
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`recommended edits and comments after reviewing the Research Paper.
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`40.
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`On September 26, 2014, Mr. Edberg emailed Mrs. Parrott about his successful
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`testing of iDiversicons® emoji on the Apple OSX operating system and implementation
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`instructions.
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`41.
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`On September 29, 2014, Mrs. Parrott emailed Mr. Edberg question technical
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`questions regarding implementation, and Mr. Edberg responded.
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`42.
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`On October 23, 2014, Mrs. Parrott was disappointed to learn from Mr. Edberg that
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`Ms. Vigil did not see an opportunity to partner with CCI and that Apple was proceeding use its
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`own human interface designers to develop diverse emoji based on iDiversicons® emoji.
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`43.
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`On October 28, 2014, Mrs. Parrott presented to the UTC her solution of using a
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`color modifier pallet to implement the five skin tone options for diverse emoji.
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`44.
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`On January 8, 2015, Mrs. Parrott sent a third letter by mail and email to Mr. Cook
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`requesting that Apple reconsider a partnership with CCI.
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`45.
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`On March 5, 2015, the iDiversicons® emoji app was a “featured” app on the Apple
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`App Store.
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`46.
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`On April 9, 2015, Apple released its first diverse emoji (“Accused Products”) using
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`the five skin tone keyboard modifier pallet.
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`47.
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`On July 13, 2015, Mrs. Parrott sent a fourth letter by mail and email to Mr. Cook
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`requesting Apple to recognize CCI, iDiversicons® emoji, and her development of diverse emoji.
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`48.
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`Upon the release of Apple’s diverse emoji, CCI experienced a decrease in sales for
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`iDiversicons® emoji.
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`49.
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`To date, Apple has released at least four versions of its emoji with five skin tone
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`options.
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`50. Mrs. Parrott and iDiversicons® emoji have been instrumental in shaping and
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`evolving the worldwide emoji landscape, including Apple’s release of diverse emoji.
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`11
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`Apple’s Copied iDiversicons® Emoji
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`51.
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`Apple’s emoji are the same or at least substantially similar to the copyrighted
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`iDiversicons® emoji that Mrs. Parrott shared with members of Apple’s team.
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`52.
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`For example, Apple’s five skin tone version of the “Oncoming Fist” emoji is the
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`same or substantially similar to CCI’s copyrighted five skin tone “Oncoming Fist” emoji. Other
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`Apple emoji that are the same or substantially similar to CCI’s copyrighted emoji include:
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`“Thumbs Up,” “Backhand Index Pointing Up,” “Backhand Index Pointing Down,” “Backhand
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`Index Pointing Left,” “Backhand Index Pointing Right,” “Index Pointing Up,” and “Ear.”
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`“Oncoming Fist” Emoji
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`“Thumbs Up” Emoji
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`“Backhand Index Pointing Up” Emoji
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`“Backhand Index Pointing Left” Emoji
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`“Backhand Index Pointing Right” Emoji
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`“Backhand Index Pointing Down” Emoji
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`“Index Pointing Up” Emoji
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`“OK Hand” Emoji
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`“Ear” Emoji
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`The Harm to CCI
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`53.
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`As discussed above, CCI receives revenues from its sales of iDiversicons® emoji
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`on Apple’s App Store and iTunes.
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`54.
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`Apple’s willful infringement takes away those revenues as Apple device users can
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`access iDiversicons®-like emoji on the default Apple keyboard. Thus, CCI (1) profits
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`commercially without paying the price for the use of CCI’s intellectual property; and (2) reduces
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`and causes substantial harm to the value of the Works. As a result, CCI has been damaged by
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`Apple’s conduct in an amount to be determined according to proof at trial.
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`55.
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`Apple’s infringement has been willful since at least its first release of diverse emoji
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`in 2015.
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`56.
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`Unless enjoined by this Court, Apple intends to continue to infringe upon CCI’s
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`copyrights and otherwise profit from CCI’s Works. Accordingly, CCI has suffered irreparable
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`harm and will continue to suffer irreparable harm unless Apple is enjoined. CCI has no adequate
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`remedy at law to redress all of the injuries that Apple has caused and intends to cause by its
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`conduct. CCI will continue to suffer irreparable damage until Apple’s actions alleged above are
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`enjoined by this Court.
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`57.
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`Apple’s actions also significantly harm innovation and America’s progress in
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`diversity and inclusion. If Apple’s copying allows it to misappropriate CCI’s substantial
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`investment in research, design, and development, other companies will be encouraged to simply
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`copy others’ proprietary works rather than invest in, partner with, or license works. The
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`significance of Apple’s wrongdoing is amplified by the fact that Apple’s willful actions target the
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`creative works of the very community CCI seeks to support and include through iDiversicons®
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`emoji.
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`58.
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`Indeed, this is contrary to Apple’s own mission to remedy gaps in diversity and
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`inclusion, especially when Apple’s own representatives have recognized Mrs. Parrott’s
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`contributions
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`to bring diversity and
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`inclusion
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`to digital communication.
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` See
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`www.apple.com/diversity.
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`COUNT I
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`Federal Copyright Infringement under the Copyright Act
`(17 U.S.C. §§ 101 et seq.)
`
`59.
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`CCI incorporates by reference the allegations contained in all paragraphs above,
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`inclusive, of this Complaint as if fully set forth herein.
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`60.
`
`61.
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`CCI owns valid copyrights in the Works at issue in this case.
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`CCI registered the Works in this case with the U.S. Copyright Office pursuant to
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`17 U.S.C. § 411(a).
`
`62.
`
`The U.S. Copyright Office issued valid Certificates of Registration to CCI for the
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`seven (7) registered Works: U.S. Copyright Registration Nos. VAu 001-204-290, VAu 001-186-
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`920, VAu 001-152-200, VAu 001-152-192, VAu 001-152-187, VAu 001-180-102, and VAu 001-
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`152-204.
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`63.
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`The Works are original, creative works and copyrightable subject matter under the
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`copyright laws of the United States.
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`64.
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`CCI has complied in all respects with 17 U.S.C. §§ 101 et seq., and has secured the
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`exclusive rights and privileges in and to the copyrights in its Works.
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`65.
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`By its actions, alleged above, Defendant has infringed and will continue to infringe
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`CCI’s copyrights in and relating to CCI’s iDiversicons® emoji by, inter alia, copying, distributing,
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`and creating derivative works, based on the Works without any authorization or other permission
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`from CCI.
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`66.
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`Defendant’s actions constitute deliberate and willful infringement of CCI’s
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`copyrights since it knew, or had reason to know, that its actions constituted copyright infringement;
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`and/or because it has acted with reckless disregard of CCI’s copyrights.
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`67.
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`CCI never gave Defendant permission or authority to copy, distribute, or display
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`the Works at issue in this case.
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`68.
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`As a direct and proximate result of its wrongful conduct, Defendant has obtained
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`benefits to which Defendant is not entitled.
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`69.
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`As a direct and proximate result of Defendant’s wrongful conduct, CCI has been
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`substantially and irreparably harmed in an amount not readily capable of determination. Unless
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`enjoined by this Court, Defendant will cause further irreparable injury to CCI.
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`70.
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`CCI is entitled to injunctive relief enjoining Defendant, its agents and employees,
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`and all persons acting in concert or participation with it, from engaging in any further infringement
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`of CCI’s copyrighted emoji.
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`71.
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`CCI is further entitled to recover from Defendant the damages, including attorney’s
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`fees and costs, it has sustained and will sustain, and any gains, profits, and advantages obtained by
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`Defendant as a result of its acts of infringement as alleged above. At present, the amount of such
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`damages, gains, profits, and advantages cannot be fully ascertained by CCI, but will be established
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`according to proof at trial. CCI is also entitled to recover statutory damages for Defendant’s willful
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`infringement of its copyrights.
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`COUNT II
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`Trade Dress Infringement and False Designation of Origin
`(Lanham Act § 43(a))
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`72.
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`CCI incorporates by reference the allegations contained in all paragraphs above,
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`inclusive, of this Complaint as if fully set forth herein.
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`Case 6:20-cv-00856-ADA Document 1 Filed 09/18/20 Page 20 of 28
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`73.
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`CCI’s Trade Dress includes the overall look and feel of CCI’s products, including:
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`the insertion of an emoji into messages (text messages, e-mails,
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`communication app messages, social media apps, and other forms
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`of content generated by mobile device users) on mobile devices by
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`selecting from a palette of diverse, five skin tone emoji, comprising
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`one of African-American tone, Asian tone, Latino/Hispanic tone,
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`Indian tone, and Caucasian tone.
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`An exemplary image of iDiversicons® trade dress is shown below:
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`74.
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`By reason of Defendant’s acts complained of herein concerning Defendant’s
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`diverse, five skin tone emoji, Defendant has intentionally engaged in conduct that constitutes false
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`advertising, a false designation of origin, a false or misleading description of fact, a false or
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`misleading representation of fact tending wrongfully and falsely to describe or represent a
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`connection between CCI’s and Defendant’s goods, and infringement of CCI’s Trade Dress rights
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`in violation of 15 U.S.C. § 1125(a). CCI believes that customers are likely to be confused by
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`Defendant’s use of such false designations of origin, false descriptions or representations regarding
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`CCI’s and Defendant’s goods, and by Defendant’s confusingly similar trade dress.
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`75.
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`In addition, Defendant’s trade dress infringement, coupled with their false
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`designation of origin, false descriptions, and misrepresentations, including in advertising,
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`regarding CCI’s and Defendant’s goods, is likely to confuse mobile device users into thinking that
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`CCI is the source of Defendant’s diverse, five skin tone emoji, that CCI has sponsored those goods,
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`that those goods are in some manner affiliated with CCI, or that those goods are the same as CCI’s
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`diverse, five skin tone emoji.
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`76.
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`Because of Defendant’s conduct, CCI has been irreparably harmed in its business.
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`Moreover, CCI will continue to suffer irreparable harm unless Defendant is restrained from
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`infringing CCI’s Trade Dress and making false designations of origin, false descriptions, or
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`misrepresentations regarding CCI’s and Defendant’s goods.
`
`COUNT III
`
`Common Law Unfair Competition
`
`1.
`
`CCI incorporates by reference the allegations contained in all paragraphs above,
`
`inclusive, of this Complaint as if fully set forth herein.
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`Case 6:20-cv-00856-ADA Document 1 Filed 09/18/20 Page 22 of 28
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`2.
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`Defendant’s advertisements, marketing, promotions, offers to sell, sales and/or
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`distribution of the Accused Products and infringing products, in direct competition with CCI,
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`constitute common law unfair competition, at least by passing off of Defendant’s diverse emoji,
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`by simulating CCI’s Trade Dress in an intentional and calculated manner that is likely to cause
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`consumer confusion as to origin and/or sponsorship/affiliation of the Accused Products and
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`infringing products are released by, distributed by, designed by, endorsed by, authorized by, or
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`otherwise associated with CCI. Defendant has also interfered with CCI’s business.
`
`3.
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`CCI’s Trade Dress is entitled to protection under the common law. CCI’s Trade
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`Dress includes unique, distinctive, and non-functional designs. CCI has extensively and
`
`continuously promoted and used CCI’s Trade Dress for years in the United States and the State of
`
`Texas. Through that extensive and continuous use, CCI’s Trade Dress designs have become well-
`
`known indicators of the origin and quality of CCI’s iDiversicons® diverse emoji products. CCI’s
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`Trade Dress have also acquired substantial secondary meaning in the marketplace. Moreover,
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`CCI’s Trade Dress acquired this secondary meaning before Defendant commenced its unlawful
`
`use of CCI’s Trade Dress in connection with the Accused Products and infringing products.
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`4.
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`On information and belief, Defendant’s use of CCI’s Trade Dress, including
`
`through reproductions, copies, and/or colorable imitations thereof, has caused and, unless
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`enjoined, will continue to cause substantial and irreparable injury to CCI for which CCI has no
`
`adequate remedy at law, including at least substantial and irreparable injury to the goodwill and
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`reputation for quality associated with CCI’s Trade Dress, with CCI, and CCI’s products.
`
`5.
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`On information and belief, Defendant’s use of CCI’s Trade Dress, including
`
`through reproductions, copies, and/or colorable imitations thereof, has been intentional, willful,
`
`and malicious. Defendant’s bad faith is evidenced at least by the similarity of the Accused
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`Case 6:20-cv-00856-ADA Document 1 Filed 09/18/20 Page 23 of 28
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`Products and infringing products to CCI’s Trade Dress, as demonstrated in, for example,
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`illustrations included herein, and by Defendant’s continuing disregard for CCI’s rights.
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`6.
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`On information and belief, Defendant has profited from their unlawful actions and
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`has been unjustly enriched to the detriment of CCI. Defendant’s unlawful actions have caused
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`CCI damage in an amount presently unknown, but in an amount to be determined at trial.
`
`7.
`
`CCI is entitled to injunctive relief, and CCI is also entitled to recover at least CCI’s
`
`damages, Defendant’s profits, punitive damages, costs, and reasonable attorney’s fees.
`
`COUNT IV
`
`Common Law Misappropriation
`
`8.
`
`CCI incorporates by reference the allegations contained in all paragraphs above,
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`inclusive, of this Complaint as if fully set forth herein.
`
`9.
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`CCI’s advertisements, marketing, promotions, offers to sell, sales, and/or
`
`distribution of the Accused Products and infringing products, in direct competition with CCI,
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`constitute common law misappropriation.
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`10.
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`CCI created the products covered by CCI’s Trade Dress through extensive time,
`
`labor, effort, skill, and money.
`
`11.
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`Defendant has wrongfully used CCI’s Trade Dress,
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`including
`
`through
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`reproductions, copies, and/or colorable imitations thereof, in competition with CCI and gained a
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`special advantage because Defendant was not burdened with the expenses incurred by CCI.
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`Defendant has commercially damaged CCI, at least by causing consumer confusion as to origin
`
`and/or sponsorship/affiliation of the Accused Products and infringing products, by creating the
`
`false and misleading impression that the Accused Products and infringing products are released
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`Case 6:20-cv-00856-ADA Document 1 Filed 09/18/20 Page 24 of 28
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`by, distributed by, designed by, endorsed by, authorized by, or otherwise associated with CCI, and
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`by taking away sales that CCI would have made.
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`12.
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`CCI’s Trade Dress is entitled to protection under the common law. CCI’s Trade
`
`Dress include unique, distinctive, and non-functional designs. CCI has extensively and
`
`continuously promoted and used CCI’s Trade Dress for years in the United States and the State of
`
`Texas. Through that extensive and continuous use, CCI’s Trade Dress has become a well-known
`
`indicator of the origin and quality of CCI’s iDiversicons® diverse emoji products. CCI’s Trade
`
`Dress has also acquired substantial secondary meaning in the marketplace. Moreover, CCI’s Trade
`
`Dress acquired this secondary meaning before Defendant commenced its unlawful use of CCI’s
`
`Trade Dress in connection with the Accused Products and infringing products.
`
`13.
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`Defendant’s use of CCI’s Trade Dress, including through reproductions, copies,
`
`and/or colorable imitations thereof, has caused and, unless enjoined, will continue to cause
`
`substantial and irreparable commercial injury to CCI for which CCI has no adequate remedy at
`
`law, including at least substantial and irreparable injury to the goodwill and reputation for quality
`
`associated with CCI’s Trade Dress, with CCI, and CCI’s products. Moreover, as a result of its
`
`misappropriation, Defendant has profited and, unless such conduct is enjoined by this Court, will
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`continue to profit by misappropriating the time, effort, and money that CCI invested in establishing
`
`the reputation and goodwill associated with CCI’s Trade Dress, with CCI, and CCI’s products.
`
`14.
`
`On information and belief, Defendant’s misappropriation of CCI’s Trade Dress,
`
`including through reproductions, copies, and/or colorable imitations thereof, has been intentional,
`
`willful, and malicious. Defendant’s bad faith is evidenced at least by the similarity of the Accused
`
`Products and infringing products to CCI’s Trade Dress, as demonstrated in, for example,
`
`illustrations included herein, and by Defendant’s continuing disregard for CCI’s rights.
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`Case 6:20-cv-00856-ADA Document 1 Filed 09/18/20 Page 25 of 28
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`15.
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`CCI is entitled to injunctive relief, and CCI is also entitled to recover at least CCI’s
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`damages, Defendant’s profits, punitive damages, costs, and reasonable attorney’s fees.
`
`COUNT V
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`Unjust Enrichment
`
`16.
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`CCI incorporates