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

I thought it was invented by

[kahanamoku]

Forest Gump?

Re:I thought it was invented by

[thedogcow]

YEOWCTLG? Funny, that is the same noise my cat makes when she coughs up a furball.

Re:I thought it was invented by

[Columcille]

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.

Re:I thought it was invented by

[lbmouse]

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.

My reaction

[way2trivial]

:(

That's it... (cat filter)

:( Sad Sad

[foundme]

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.

Simley?

[virgil_disgr4ce]

In the article, the spokesman's name is Simley. Why is it an anagram of smiley??? WHY?!

I worked for walmart .....

[fotbr]

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".

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.

As the Comic Book Guy would say...

[thedogcow]

There is no emoticon for how I am feeling.

Despair Inc. beat you to it

[Johnso]

Despair Inc. already has the frowny emoticon trademarked.

He had no claim

[Jafafa Hots]

Harvey R. Ball invented the yellow smiley in 1963 for a life insurance company. He was paid $45.

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.

Pointless "prior art"

[jnadke]

I've been producing shit since I was born, but you don't see me suing Slashdot.

Change-up

[cei]

In a deft move by Wal-Mart spokesman John Simley, Wal-Mart mistakenly trademarks the Simley face.

Re:Two issues here

[Russ Nelson]

You forgot to say "I'm not a lawyer, so you shouldn't listen to me."

You can copyright a logo.

Spelling matters

[alanwj]

Wal-Mart spokesman John Smiley

The universe would not allow such a coincidence. The guy's name, according the the article, is actually John Simley.

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.

Defensive trademark registration

[Russ Nelson]

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.

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:Oops..

[Technician]

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.

Re:Two issues here

[Stinky Cheese Man]

They are not copyrighting the smiley - they are trademarking it. These are very different things.

SCM

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.

slashdot trademarks

[cashman73]

Has CowboyNeal filed the trademarks for the "/" and the "." yet? One would think that would be an excellent money-making opportunity for slashdot.

Mr. Copyright, meet Mr. Trademark

[penguin-collective]

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.