About a fortnight after O’Shea Jackson, known as Ice Cube, filed an amended complaint against Robinhood, the online trading app has responded to the allegations, asking that the Court dismisses the complaint.
According to documents filed by Robinhood on July 20, 2021 at the California Northern District Court, Robinhood Markets, Inc. and Robinhood Financial LLC will move the Court to dismiss with prejudice Plaintiff O’Shea Jackson’s First Amended Complaint in its entirety.
Let’s recall that the lawsuit stems from events from March 2021, when, according to Ice Cube, Robinhood “shamelessly misappropriated Ice Cube’s image and likeness to promote Robinhood’s horrible products and services – the last things in the world to which Ice Cube would ever attach his image and likeness”.
On March 8, 2021, Defendants impermissibly used Ice Cube’s persona – i.e., his image and likeness – in connection with an advertisement for Robinhood’s financial services and products on the “Robinhood Snacks” website and app. The Advertisement uses Ice Cube’s image and likeness, including his signature catch phrase, in order to create the false impression that Ice Cube actually endorses Robinhood, its products, and its services.
Ice Cube argues that the Advertisement creates the false impression that Ice Cube supports, endorses, or is otherwise associated with Robinhood’s products and services. This is especially true as the Advertisement (mis)quotes the most well-known lyric from Ice Cube’s hit single, “Check Yo Self.” Defendants’ deliberate decision to couple Ice Cube’s famous lyrical catchphrase with his pictorial image evidences their intent to capitalize on Ice Cube’s celebrity to attract customers.
Now, according to Robinhood, Ice Cube lacks standing under federal law and the First Amended Complaint fails to state a claim for which relief can be granted.
Specifically, Robinhood says that the plaintiff fails to plausibly plead facts showing how the defendants’ use of a still frame from a movie and a paraphrase of a line from his song Check Yo’ Self for illustrative purposes amounts to a false endorsement under the Lanham Act.
Moreover, according to Robinhood, Defendants’ noncommercial conduct does not satisfy the commercial-use requirement for Plaintiff’s false endorsement claim, Plaintiff’s claims are barred by the First Amendment, Plaintiff’s claim conflicts with federal copyright law, Defendants’ use of the image and paraphrase satisfied the Rogers defense, and Plaintiff otherwise has not plead tenable claims.
Robinhood claims the use of Ice Cube’s image amounts to a parody. The “defendants are making a parodic use of the phrase “check yourself before you wreck yourself” by changing the first word to “correct,” Robinhood says.
Defendants say they conjure up the association with the popular saying and comically modify it using a rhyme scheme to identify its own editorial commentary related to the stock market, much in the same way CHEWY VUITTON is a play on LOUIS VUITTON.
The defendants say:
“This light-hearted play on words does not, and legally cannot, result in consumer confusion because the ordinary consumer will recognize that Defendants’ use is making fun of the commonly-used slang phrase. In other words, though the recognition of the parody, consumers automatically understand that no certain trademark owner is affiliated with this use, and any consumer confusion is therefore avoided. Accordingly, Defendants’ use of the phrase amounts to nominative fair use because it uses this phrase to identify itself”.
When a trademark is parodied, by definition, there is no trademark infringement because there is no likelihood of confusion. Robinhood concludes.
The lawsuit continues at the California Northern District Court.