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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."
How about a time frame that is put into place? Lets say you can't patent or trademark an idea/logo if it's been used for over a year. That would solve a lot of problems.
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for two months to pay bills.
NO ONE that worked there smiled. Why? We were all miserable. The only time we were happy was when our shifts were ending at 7am, coincidentally when they started selling alcohol each day. I can't speak for walmart in general, but the store I worked at had HORRIBLE management, directly contributing to the lack of smiles amongst the night shift.
Back on topic, its horsepucky. People see a smiley face, they do NOT think "walmart".
Walmart is trying to avoid the same situation Linux was in a few years ago. Everybody knew that Linux came from Linus, and yet the USPTO (the "M" for Morons is silent) allowed some mental defective to register "Linux" as a trademark. Much confusion and angst ensued until Linus was able to wrest his trademark back. The way trademarks work, Walmart MUST try to defend their common-law trademark against a rogue trademark registration.
In this case, Walmart is the little guy defending itself against the Big, Bad USPTO.
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If I remember correctly, Microsoft's trademark case over the term 'Windows' fell apart on one rather innocious bit of law - apparently while it's entirely possible for something to go from trademarkably specific to common use (like 'kleenex' or 'band-aid'), it's legally impossible for the reverse to occur. Thus, Microsoft's 'Windows' trademark is effectively legally unenforcable. I very much suspect the same applies in this case.
To make laws that man cannot, and will not obey, serves to bring all law into contempt.
--E.C. Stanton
This brings up some really bizzare (at least in my mind) legal questions.
IIUTC trademark in the US is limited to specific types of business i.e. retail.
From TFA Franklin Loufrani - just one of a number of people who profess to have invented the image - has marketed the sign since the early 1970s.
He and his London-based company SmileyWorld today own the rights to the logo in more than 80 countries around the world.
Does he own a copyright or a trademark? Are these two concepts universal? Does he license it to multiple forms of business? How would this concept of him 'owning the rights' apply here in the US?
On top of that, how does the whole 'prior art' thing work in this instance? Could this guy theoretically trademark something he's been using since the 60's even though another company has been using it for over 10 years? Is prior art an international concept, or does it have to have been used in the US for the USPTO to recognize it?
Ultimately I'm not sure why this frenchman is bothering, other than the fact that he's French and annoying. It would cost Walmart an astronomical amount of money to remove the smiley from all of the areas of business where they use it. I"m sure they'd much rather put that money to fighting it (or buying a judge, buying new laws, etc...). How could anyone hope to have the finances to win this case?
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You can copyright a logo that has sufficient authorship.
I don't think a yellow-and-black smilie face counts.
Unless I've misread something, this is the little guy trying to crush Wal-Mart. Wal-Mart's move is a protective reaction against another entity wanting to trademark an image currently in the U.S. public domain. 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.
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Walmart should be held to a higher level of truthfulness in their advertising and thus their grocery bags. I have never really seen associates or customers of Walmart smile. In fact, I see them frown a lot, or just have blank overconsumered looks on their faces. Whether in the returns line, the check out lines (sans human clerks now), or interacting with live clerks, a smile at Walmart is as plastic as the bags they are printed upon. Maybe they should copyright a frowning face, one that clearly captures the truth of the Walmart Experience (tm) :)
A logo can be protected under both trademark and copyright laws. In the US it gets copyright protection as a "graphic work" (17USC102(a)(5)), provided it is an original work in the sense that "original" is used in copyright law.
First of all.
http://en.wikipedia.org/wiki/Harvey_Ball.
Great, nice going, Bone fighting over a dead mans invention. Real nice, And mature ofcource.
Neither of those litigious bastards(tm) should be allowed to make any claim to this.
The family of Harvey Ball should go after both of them to bleed them dry. If only to show trash like that that this sort of BS is not to be accepted.
How can these ppl take themselfes seriously ?
Wal-Mart, the champions of the "if you can sell it and make lots of money" brand of rotted capitalism we have here in America didn't care to trademark the smiley face UNTIL someone who potentially is the creator of the icon decides to try to get it trademarked? Wouldn't that make Wal-Mart hypocritical? As soon as someone is gearing up to be in a position where he could make a lot of money off of Wal-Mart and various IM software companies (not to mention Microsoft Bob), it's all of the sudden their icon to trademark? Sorry you fucking idiots. But the smiley face has been around since before I was born and Wal-Mart is younger than I am. Someone throw a brick in the face of the CEO please?
-"...bad old ideas look confusingly fresh when they are packaged as technology" - Jaron Lanier (Digital Maoism on Edge.o
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.
You're confusing copyrights and trademarks. They can't "copyright" the smiley face because they didn't create it. They can trademark it. But if the smiley face actually were under copyright, then they couldn't trademark it because you couldn't reproduce it (so they could never use it).
Legally, WalMart may be able to get away with registering a trademark on the smiley face, if it is really in the public domain. Ethically, that's wrong: the smiley face is a cultural icon that no company ought to be able to claim rights to.
However, one can throw a monkey wrench in their plans simply by re-creating the association between the smiley face and psychotic killers, since those seem to love the symbol. Given stories by WalMart employees, perhaps their choice of trademark isn't so inappropriate after all.
Yes, because everything Wal-Mart's PR department says is obviously the unbiased gospel truth. Just because someone didn't fill out the paperwork in the US, doesn't mean they're wrong. They have the trademark in 80 countries around the world already. This isn't a little guy or a big guy thing-- this is two companies battling over logos, akin to Apple vs Apple. In the end, this is going to be a pretty common news item as globalization continues to set in.
E pluribus unum
Your analogy is wrong. Applying for the trademark application is more like developing weapons technology, not using it. You then have the option to use those weapons if you need to, but also have the option to negotiate if you choose. Walmart should both challenge the trademark application and at the same time make a specific application for their version of the smiley face (which is somewhat unique to Walmart). There is no reason for Walmart to commit to one type of action... just as you can develop weapons technology while holding talks with your enemies. This isn't a mutually exclusive decision.
Applying for the trademark application is more like developing weapons technology, not using it. You then have the option to use those weapons if you need to, but also have the option to negotiate if you choose
Actually, while this may be the case with copyrights, it is not the case with trademarks. If you have a trademark, and someone infringes on it, and you don't vigorously defend it in a timely manner, you lose your exclusive rights to it.
True, but if Walmart's point is to defend their right to use what has been considered to be in the public domain then losing their trademark officially to the public domain would be ok. The worst case scenario for them, is to lose their smiley face to this guy's trademark. This is a defensive move, not an offensive move.