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Wal-Mart Trying to Trademark the Smiley Face
Ellis D. Tripp writes to tell us BBC News is reporting that mega-retailer, Wal-Mart, is now fighting it out with a man who claims to have invented the 'smiley face' logo, and has been marketing it since the '70s. From the article: "Until now the smiley face had been considered in the public domain in the US, and therefore free for anyone to use. Wal-Mart spokesman John Simley told the Los Angeles Times that it had not moved to register the trademark until Mr Loufrani had threatened to do so."
Despair Inc. already has the frowny emoticon trademarked.
I'm a signature virus. Please copy me to your signature so I can replicate.
Harvey R. Ball invented the yellow smiley in 1963 for a life insurance company. He was paid $45.
This space available.
Actually, the sad face is owned by despair.com
e ntry=75502288
http://www.despair.com/frownonthis.html
See the actual posting at
http://tarr.uspto.gov/servlet/tarr?regser=serial&
Plastic Legos began production in 1963, they've had smiley faces on them ever since, Duplo's were introduced in 1967, they have smileys.
Suck it.
"See, we plan ahead! That way, we never have to do anything now."
You forgot to say "I'm not a lawyer, so you shouldn't listen to me."
You can copyright a logo.
Don't piss off The Angry Economist
The universe would not allow such a coincidence. The guy's name, according the the article, is actually John Simley.
Patent law actually already works this way. If something was published or used in the US over a year before you applied for the patent, you're done. You aren't getting anything.
You didn't read the name right just like I did on the first pass on the article.
From the article "Wal-Mart spokesman John Simley told the Los Angeles Times"
Smiley and Simley are not the same.
The truth shall set you free!
Only fitting, since the frown is already trademarked.
SCM
If I remember correctly, the sad face: :-(
is already trade marked by Despair Inc.
http://www.despair.com/frownonthis.html
And it is already registered. So I don't see why one can't register a trade mark from the smily face.
Haha! Way to conveniently edit out the sentence that says "yes, you can copyright a logo." That showed him I bet!
http://www.straightdope.com/classics/a4_031.html
if i'm not immortal, what's the point of living?
...te?
http://www.worcesterhistory.org/ex_smiley.html
Just thought you'll want to know.
IANAL, but I have taken a class on trademark law, and from what I understand Walmart and the guy attempting to register this trademark face an uphill battle due to the commonality and generic nature of the smiley face. The particular smiley face that Walmart wants to trademark may have a modicum of uniqueness, but the smiley face in general has been in such widespread use both on the internet and in other public forums that both parties will have to produce a mountain of proof that they face financial loss by not having the symbol assigned solely to them. Once a logo or slogan has entered the public domain it is virtually unenforceable as a trademark, which by the way is completely separate from a patent. See also: Kleenex, Band-Aid.
If I patent something, nobody can use it without a licence from me. But a trademark merely distinguishes my goods from other people's. McDonald's have trademarked their logo for hamburgers, but that doesn't stop Hungry Jack's or even my Lions Club from selling hamburgers. It simply means that they can't be called McDonald's.
And trade marks apply only to a category of goods. If I want to sell nuts and bolts under the Big M logo (either Mcdonald's or the "BigM" flavoured milk logo here in Oz), it wouldn't cause any confusion with their product.
A trade mark doesn't have to be something newly invented. It used to have to be a "mangled" word not in common use in the language, but that seems to be no longer required. The name "Barrier Cream" was struck off because it merely described what the cream did, but that was years ago.
If I am right, both Loufrani and Wal-Mart are entitled to use the smiley, and so can you and I.
This is a Trademark, not a patent or copyright fight. The brewers of Bass Ale didn't invent the word Bass, they just trademarked it in conjunction with their triangle logo. Trademark law is supposed to help the consumers by eliminating confusion in the market place.
IANAIPL but my ex-wife is and she is always talking about how strange and vague trademark law can be. Her firm help trademark the shape of the Dean's Milk Chugs bottles. They used the Coca-Cola bottle product packaging trademark as the basis for their argument. So saying that consumers might be confused in the market place by a well known smiley face is not that odd or unethical.
It seems this should be a glaringly obvious issue as far as U.S. trademark law is concerned. If it was ever possible to trademark, that time has long passed. The image has appeared on everything imaginable from pillows to bandages, probably millions of successful elementary school test papers, shoes, bowling balls, pins, etc, etc. I can hardly imagine a MORE dilute image. It's a testiment to the diluted nature that the overwealming majority of people don't even have a theory as to who created the smiley face image.
It appears that WalMart is well aware of this and that their action is purely a defensive move to avoid the expense of a court battle. The fact that the best defense against an outrageous legal claim is an equal but opposite outrageous claim is an indictment of the U.S. court system, not WalMart. There are plenty of reasons to question WalMart, but this isn't one of them.
Cite?
Unless the artist(s) who claim first use of the mark were/are using it in conjunction with the operation of retail department stores in approximately the same geography, confusion between that use and Wal-Mart's use of the mark would be very difficult to demonstrate. First use of the mark by the French artist in connection with selling... nothing? (http://www.smileyworld.com/shop/) or items branded with smiley faces has little to do with Wal-Mart's use of the mark in selling non-smiley-related merchandise.
There are 1.1... kinds of people.