My Declaration Identifying Emoji Co. GmbH as a Possible Trademark Troll

There are dozens of federal lawsuits captioned “Emoji Company GmbH v. The Individuals, Corporations, Limited Liability Companies, Partnerships, and Unincorporated Associations Identified on Schedule A Hereto.” Last month, in one of them, I filed a declaration stating that “Emojico appears to be running a trademark trolling operation.”

My declaration lays out how I reached my conclusion. To summarize the declaration, I believe Emoji Co. works as follows:

• Emoji Co. has trademark registrations in a popular dictionary word, “Emoji.”
• Emoji Co. runs searches for the term “emoji” in marketplaces like Amazon.
• Emoji Co. identifies search results referencing the term “emoji” in the title or description, even if the product, in fact, depicts emojis and would obviously qualify as either non-use or descriptive fair use (see screenshot as one of dozens/hundreds of examples).
• Emoji Co. then sues dozens or hundreds of unrelated defendants–many of which are small-time entrepreneurs–in a single lawsuit where the defendants are named in a “Schedule A” that is filed under seal. As my declaration explains, I estimate that over 10,000 defendants have been ensnared in this litigation net in the past 15 months or so. However, I couldn’t compute the exact number because many Schedule As inappropriately remain under seal.
• While the defendants’ names remain sealed, Emoji Co. obtains an ex parte TRO against alleged counterfeiting/infringement.
• Emoji Co. tenders the TRO to online marketplaces like Amazon, which will freeze the defendants’ accounts.
• With the defendants’ accounts frozen (which can affect things like the defendants’ ability to list new products or access the cash in their account, even if those activities are unrelated to the alleged infringement), the defendants are desperate to quickly resolve the matter via a settlement.
• Emoji Co. then voluntarily dismisses the defendants.

All of this activity can happen without the defendants ever being served or a judge ever conducting any hearing where any defendant makes an appearance. If the scheme works properly, Emoji Co. is never challenged in court and the scheme attracts minimal press scrutiny. I hope my declaration helps draw more attention to this situation.

If you are interested in looking into this particular case more, I can share the library of docket filings.

A Law360 story on this case.