Here in The Tree, we love Apple products. We anxiously await any new updates to the hardware or software. We are also goofballs, so we were very excited to download iOS 12 and use the new Memoji feature. “Memoji” is a portmanteau of “me” and “emoji”. The feature allows you to shoot live video of an animated version of yourself ( a “Memoji”). It’s a blast.
In addition to Apple products, we also love trademarks. So, we were doubly excited to find out that there is a trademark issue involving Apple’s use of the Memoji trademark. Another company claims to have used the Memoji trademark before Apple and has filed a lawsuit claiming trademark infringement. There is a long, convoluted history here that really isn’t important. What is important is that this isn’t the first time this has happened.
Apple has another iOS feature called “Animoji” that was released with iOS 11. This feature allows you to shoot live video of yourself as an animated character like a dragon or poop (really). The same basic thing happened with the Animoji trademark that has just happened with the Memoji trademark—someone claimed they were using it first. Again, the facts of the case aren’t important, but here’s the punchline: Apple is still using the Animoji trademark.
The reason the facts of these cases aren’t important is that the outcome is inevitable. Apple will be using the Memoji trademark a year from now if it so chooses. The reason Apple always wins these cases has nothing to do with trademark law. Apple wins because it has a bunch of money.
This is a tough pill to swallow for a lot of trademark owners, but it’s a basic fact of life. Companies with large amounts of resources can make it prohibitively expensive to enforce your trademark rights. They can also use the threat of an expensive confrontation to expand their trademarks rights beyond what they may otherwise have (some people call this “trademark bullying”).
I know. The world’s not fair, but, knowledge is power. Understanding how each party’s resources play a part in trademark strategy can help you make the right decisions if you are ever confronted by a party with much greater resources than you.