The Volokh Conspiracy
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From Jackson v. Robinhood Markets, Inc., decided today by Magistrate Judge Laurel Beeler (N.D. Cal.):
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). The court previously dismissed the case … 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….
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.
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. 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….
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 [for trademark law purposes -EV]. But the image and phrase are not an endorsement: they illustrate a point in the newsletter about a market correction in tech stocks. 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. (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. (9th Cir. 1992) (finding the depiction of a robot modeled after and dressed as Vanna White and 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 (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. (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 …. Because the court gave leave to amend previously, and the plaintiff did not cure the complaint's deficiencies, the dismissal is with prejudice.
Note that this doesn't preclude a possible claim under California's right of publicity law, which focuses on the use of plaintiff's identity without permission, not on the likelihood of confusing consumers; it presumably can still go forward in California court.