Kik’s defence to RIM’s infringement lawsuit

Late last year, RIM sued Kik Interactive Inc., the maker of the popular cross-platform instant messaging client Kik Messenger, alleging breach of confidentiality, trademark infringement, and patent infringement.  At the same time, RIM also removed Kik Messenger from BlackBerry App World.

It’s been a long time coming, as we were expecting Kik’s statement of defence to be filed with the court at the end of December. Finally, on Monday Feb 7, 2011 (well after the 30 day deadline for Canadian defendants), Kik filed their defence and counterclaim after the Court granted them an extension of time.

I had a look at Kik’s Statement of Defence and Counterclaim today (available here, 7MB PDF).

Kik denies that it was developing a cross-platform instant messaging client in secret or had access to RIM’s BBM confidential documents, denies that it’s infringing on RIM’s trademarks or patents, and found prior art (EP093213, JP10013881, Outlook 2000, and a whole list of documents in Schedules A & B) which Kik alleges makes RIM’s asserted patents invalid.

Kik theorizes that as a result of the “overnight success of Kik Messenger”, “senior executives at RIM caused RIM to embark on a campaign to destroy or seriously harm Kik, including unilaterally terminating the various agreements between Kik and RIM, suspending and then removing Kik Messenger from BlackBerry App World and commencing this lawsuit, including a meritless patent infringement claim which RIM knew had no realistic chance of success.”

Kik portrays the suit as a classic case of Goliath picking on the poor small startup: “RIM employed a ‘bully’ like strategy, while Kik attempted to appease RIM…”.

Interestingly, in the statement of defence Kik asserted that Ted, the CEO of Kik, did not have access to the BlackBerry Messenger (BBM) source code while he worked at RIM’s BBM team as a Project Coordinator.  Kik also denies that Ted had access to RIM’s development plans, market research, and other internal reports related to BBM while working as part of RIM’s BBM team, as RIM had alleged in its statement of claim.  It’ll be very interesting to see exactly what documents Ted had access to or potentially had access to while working as part of RIM’s BBM team, and whether any of them led to his decision to develop a cross-platform instant messaging client in late 2009.

As with most lawsuits, the truth will come out during discovery and at trial, and will probably fall somewhere in between the allegations made in RIM’s statement of claim and Kik’s statement of defence.

About David Lam

David Lam is a lawyer practicing business law, real estate law, intellectual property law (patents, trademarks, copyright, licensing), and litigation in the Greater Toronto Area. For more information and to contact David, please visit http://www.davidlam.ca.
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2 Responses to Kik’s defence to RIM’s infringement lawsuit

  1. Luke Johnson says:

    Nice update David.

    I saw on Twitter that Kik is waiting for their iPhone app to be approved. Didn't you mention in one of your pervious articles that RIM request that Apple and Google pull Kik from their store fronts?

    The app has been 'in review' for an unusually long time. Do you think Apple or Google would ever not approve Kiks updates / pull the app because of this on-going lawsuit?

    Thanks!

  2. David Lam says:

    Hi Luke, I don't think RIM has any influence on whether or not Kik's iOS or Android app gets approved or pulled in their respective app stores. As competitors in the ruthless mobile market, I don't see Apple or Android doing RIM any favours.

    RIM may very well have sent a letter to Apple or Google notifying them of a pending patent infringement lawsuit, but that doesn't necessary mean that Apple or Google will do anything to Kik's app in their respective app stores without a court determining that Kik's apps actually infringed RIM's patents. Remember that none of RIM's allegations have been proven in court. Until a court determines that there's infringement (or the parties settle out of court), there's no obligation on Apple or Google to do anything with regards to Kik's app. Merely offering Kik's app in the iOS app store or the Android Market doesn't expose Apple or Google to legal liability – the terms of use for each respective app store has an indemnity clause where Kik will defend any allegations of infringement made in relation to its app.

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