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."

Comments

Re:I thought it was invented by

[kahanamoku]

Bugger!... Pays to read before posting!!!

But in all seriousness, I would've thought that the Joe Boxer company would've had more claim to the logo than most. (although they Did add the tongue) Picture Example

The only way I can see this working for Wal-Mart

[Rachel Lucid]

There's no way they can copyright the 'smiley' face itself. They might be able to copyright their interpretation of it.

Wal-Mart's smiley face is a very distinctive one - the elongated eyes, the wide smile, the button-ised bevel around its edges, the ray-man-esque gloves. If they included its whistling personality and the song they use for the whistling, there is a GOOD chance they can copyright that specific interpretation of the smiley as a cartoon character, much in the way the Church of the Subgenius seems to hold the copyright for 'Bob's pipe-wielding visage, despite how common the image of a clean-cut 50's male with a pipe actually was in those times.

I think Wal-mart is full of shit here if they think they can claim they invented the smiley or patented its use in drumming up sales, but if they keep to that narrow interpretation I just described, they have a chance.

Re:Two issues here

[eonlabs]

Apparently, patent and trademark law has changed in the last 20 years to
"Patent and Trademark EVERYTHING, Including the wheel. It will get accepted, and unless you fight it out in court, and LOSE, people should pay you money for using it."
Frivility is a non-issue at this point.

I think walmart and the other guy need a good solid kick in the pants.

Re:I worked for walmart .....

[heinousjay]

I don't understand.

Obviously. Capitalists aren't about the joy of working for someone else. People that enjoy working for someone else tend to be communists.

Re:I worked for walmart .....

[nosredna]

It's been a long time since I've been in a 24-hour store in the wee hours and seen the employees smiling (excluding of course the stoned guy running the drive-thru at Taco Bell, or anything involving floor buffer races). I'd blame the simple fact of working third shift in a retail chain before blaming management completely.

That's not to say that the management had nothing to do with it, of course, but not many people are gonna be doing a lot of smiling while restocking the toilet-paper aisle and directing the latest group of stoners to the Doritos, regardless of the management.

It's the yellow.

[gameforge]

The only thing that distinguishes "this" smiley face from any three year old's smiley face is the color yellow.

Does the "obvious" thing apply to trademarks? It's just too simple. It's been used too many times before. It's even on license plates.

I know this face from the "have a day" poster; it has dozens of variations of the face with labels like "have a silly day" or "have a cold day".

There's a reason it was in Forrest Gump, and there's a reason someone made a whole poster out of this smiley face; everybody knows that yellow smiley face (from somewhere).

Now, let me see if I get this straight. Some French guy comes along and threatens to trademark the smiley. I guess this implies that he wanted Wal-Mart to quit using it? Wal-Mart hadn't even moved to trademark it until he came along, right?

Wal-Mart didn't do anything wrong. I'm shocked.

Re:The Patent System Needs an Overhaul

[stuuf]

No, slashdot needs an overhaul. Happy Birthday is copyrighted, Wal-Mart is trying to trademark the smiley face, and now you mentioned patents for no reason. Those are three different things.

Re:IANAL, but you're still wrong

[cpt kangarooski]

No, it likely counts. But only for the original author. If someone else comes along and makes the same basic illustration, based upon the earlier one, then they haven't contributed anything new. And only the new contribution would be copyrightable.

Re:Defensive trademark registration

[bnf]

No. It's not analagous. What you are proposing paints the scene with a brush drawn from the can of revisionist history.

In no way does everyone know that the smiley face "came from Walmart". In fact it did not. Walmart has latched onto this symbol of good cheer in order to bolster their brand. And while the origin is a point of contention, it ain't their's. They did not invent that symbol.

Linux was, is and always has been associated with the work of Linus Torvalds (and company).

Walmart is stealing the smiley face. They are either stealing from the public domain, or from someone with a prior claim but make no mistake they are coopting it for themsleves.

The trademark dispute over the origin's of the smiley face are long standing. The Frenchman has a valid trademark in Europe and elsewhere. Good for him. Just because Walmart want's to get in on the act doesn't mean that we should all line up to hand over this part of the zeitgeist.

IMHO the smiley face is probably perfect for Walmart. Nothings says just be happy and don't give a shit or much thought about the broader implications of where you spend your dollars than a smiley face.

Wake up you sheep.

Re:I worked for walmart .....

[Anonymous Coward]

People that enjoy someone else working for them tend to be communists

Fixed that for you.

Walkman

[mwvdlee]

It doesn't really matter who invented it. Just like Sony's "Walkman" trademark; if you don't enforce the trademark properly, it becomes public domain and everybody can use it.
Apparently it took SmileyWorld a few decades before trying to enforce their claimed trademark. As such it has become public domain already, whether they ever had the trademark or not.
I hope if Wal-mart wins, they'll be nice enough to let everybody use it. But it's a US corporation, so they'll probably sue anybody who's ever touched it.

Re:I thought it was invented by

[Anonymous Coward]

The indication from the article is that Wal-Mart has no problem with it being public domain, but are now trying to trademark it in response to the actions of "the little guy". Had "the little guy" not tried to trademark the image, Wal-Mart would not be doing this.

It's possible to oppose a trademark application without applying for the trademark yourself.

This is as if the USA had preemptively nuked Iran, instead of trying to achieve a peaceful solution like we currently are.

Re:The only way I can see this working for Wal-Mar

[ObsessiveMathsFreak]

I think Wal-mart is full of shit here...

That may be true, but they're also full of money, the thing that really counts in the court system.

Re:I thought it was invented by

[neoform]

So as a response they're then going to trademark something they didn't invent.. sounds ethical to me..

Re:I thought it was invented by

[deesine]

I was thinking something very similar: Perhaps Wal-mart failed to tell us of the letter they first sent him asking for him to turn the rights over/sell to them.