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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."
Forest Gump?
----- Concentrate on promoting more than demoting.
:(
That's it... (cat filter)
every day http://en.wikipedia.org/wiki/Special:Random
Whatever the outcome, I'm sure the loser will be entitled to use the SaddyFace.
And since this is a trademark dispute, can't SmileyWorld keep selling its smiley icons while Wal-Mart keep sellings its items. I don't see a dispute here unless Wal-Mart employees start smiling.
Please stop entering code 2,2,7,6,6,4
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.
Sig: I stole this sig.
In the article, the spokesman's name is Simley. Why is it an anagram of smiley??? WHY?!
Limina.Log
Don't worry... be litigious....
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".
There is no emoticon for how I am feeling.
Yes! I listen to NYC Speedcore and do math at 3AM. I suggest you try it too.
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.
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Threesome
Please stop entering code 2,2,7,6,6,4
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.
I've been producing shit since I was born, but you don't see me suing Slashdot.
Alan Moore should hold rights to it, but he'd just sign them over to Dave Gibbons anyway....
"Waste not one watt!" - CZ
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."
In a deft move by Wal-Mart spokesman John Simley, Wal-Mart mistakenly trademarks the Simley face.
This sig intentionally left justified.
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.
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.
I wouldn't consider the mad hatter mad. Just reality impaired. He sure can make a mean cup of tea.
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.
Don't piss off The Angry Economist
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.
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.
Everyone is born right-handed; only the greatest overcome it
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
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?
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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Has CowboyNeal filed the trademarks for the "/" and the "." yet? One would think that would be an excellent money-making opportunity for slashdot.
You can copyright a logo that has sufficient authorship.
I don't think a yellow-and-black smilie face counts.
http://www.worcesterhistory.org/ex_smiley.html
Just thought you'll want to know.
"A Frenchman who claims to have invented the yellow smiley face back in 1968"
After all, this is a very well known fact that only Frechman is capable of being yellow AND have a smiley face. Fact proven during WWII, case closed. Give the patent to the Frechy.
"Don't let fools fool you. They are the clever ones."
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.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
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) :)
So you agree it's a coverup then? ;-)
"Wal-Mart spokesman John Simley"
Cost of a spokesperson : $40K a year
Cost of a spokesperson with a name that sounds like an advertising gimick of the company: Priceless.
For everything else there's Walmart Visa cards.
Oh You POS
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.
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
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.
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Lord knows, they are probably incestuous and recursive and using reiserfs - who knows what fsck would uncover as it ran across the files intended to be mounted via loopbacks... That would truly be a CF.
Why is there an "insightful" mod and why isn't it "-1"? If I wanted insight, I wouldn't be reading
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.
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.
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.
May the Maths Be with you!
Guess who wins in the argument about who can or cannot legally trademark something between the USPTO and some guy on Slashdot who hear from a friend who knows a guy who said that Microsoft couldn't trademark something?
Don't blame me; I'm never given mod points.
Thats how its spelled in the /. summary. The problem isn't that he misread it, its that he assumed the editors knew how to spell (or at least copy and past correctly).
Mathematics is made of 50 percent formulas, 50 percent proofs, and 50 percent imagination.
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.
It's waaaay older than that.....
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