michal-kubalczyk-tdMu8W9NTnY-unsplash (1)It’s hard enough for any small or midsize business to take on corporations in any sort of intellectual property case in the best of circumstances, with evidence and the law ostensibly on their side. The court systems are overworked and the process is by design deliberative, which is another way of saying slow, and both of those facts work to the benefit of the bigger business that can afford to let things play out without any significant diversion of energy or resources. Occasionally, with enough perseverance and perhaps a bit of fortune, individuals and small businesses come out on top, but that requires them to get everything right. 

Not everyone gets it right, however, nor necessarily has a good case to press in court. From Techdirt comes the story of Social Tech, the company that tried to claim trademark infringement on the part of Apple over its ‘Memoji’ feature — the emoji that can be customized to look like you, or perhaps an idealized version of you with a bit less grey in the hair and/or beard. The company lost the initial case, and was dealt another defeat upon appeal.  

The losses aren’t themselves of much interest; rather, it’s the inability of Social Tech to even put up a convincing front that they were in fact interested in developing the ‘Memoji’ as a viable product rather than as a golden ticket to be paid out by Apple. As recounted in court and on Techdirt, Social Tech filed a trademark for “memoji” only to let it lie dormant for two years, with seemingly no effort to actually put out any sort of product or app or service. In the interim, a separate company called Lucky Bunny applied for a similar trademark only to be rejected, and were eventually acquired by Apple, who used Lucky Bunny’s actual, extant software to launch its own ‘Memoji’ trials. 

Here, according to the findings of the court, is where Social Tech sprung into action, efforting to put out an app for their own ‘Memojis’ regardless of its quality or readiness for the express purpose of ensnaring Apple in trademark infringement and extracting a payday. I use ‘express’ deliberately, because it seems these exchanges were memorialized over email, and were explicit about the aims of the entire enterprise — probably not something you would do if you thought there was a chance your emails would see the light of day. 

Given this evidence, and the fact that the trademark sat unused for two years before that opportunistic flurry of activity, Social Tech lost both the case and the trademark for “Memoji’, neither of which come as any great surprise. Social Tech forgot two cardinal laws when it comes to IP and big tech: trademarks require use in commerce to be upheld, and if you’re going to come at a company like Apple, your case better be all the way buttoned up.

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