My 12 year-old son Joseph received a phone yesterday – his first. More specifically, I entrusted my iPhone to him and purchased a new one for myself. This was a big deal at our house.
Joseph immediately started creating a "customized keyboard" on the phone that included emoticons as keyboard keys. Never thought of it.
I have generally ignored emoticons, primarily because I use my phone for work and secondarily because my eyes are not good enough to distinguish between all of the variations of emoticon expressions and I live in fear of sending what I thought was a "thumbs-up" symbol, only to discover later that it was something else.
I started thinking about emoticons and whether they could be protected by intellectual property laws. My first thought was about copyright law. I would say that some emoticons likely meet the modicum of creativity required to warrant protection under U.S. copyright laws, but again, my eyes are not good enough to determine what detail might be present without enlarging the emoticons for individual inspection.
Since this is a blog about trademark rights, I started investigating claims to trademark rights in emoticons. As most regular readers know, a trademark can be comprised primary or entirely of a symbol. Do you recognize this symbol?
It is for Panera Bread – just one example.
But would anyone recognize any particular emoticon as originating with a specific commercial source and indicating goods or services that emanate from that source? I doubted it, particularly with respect to the "King of Emoticons" also known as the smiley face. And then I found on Wikipedia a reference to Franklin Loufrani who appears widely recognized as the original inventor of the "smiley logo" in 1971.
As the web site dedicated to all "smiley faces" reports, in 1997, Nicolas Loufrani (the son of Franklin Loufrani) began to digitize the Loufrani smiley faces. This led to the creation of a "dictionary" of icons based on the original "Smiley" for use in communicating whatever it is that smiley face emoticons are intended to communicate. Apparently, there are now over 2000 different "smiley" icons available in the Smiley dictionary, with new one being added every day. Imagine.
Looking back further in history, Scott Fahlman is considered the "Father of Emoticons." I might consider him the "Grandfather of Emoticons," as he is credited as the first to use standard keyboard characters to communicate emotions in typewritten text (Fahlman by the way is highly critical of modern "picture" emoticons). The first keyboard emoticon typed in September 1982 by Fahlman, a computer science professor at Carnegie Mellon University, appears below.
: – )
Does this make smiley face emoticons capable of serving as a source identifiers? Certainly, the owner of the web site http://www.smiley.com/company considers what he has created as a "brand" and does offer for sale a variety of items bearing the "smiley logo."
My opinion is that at this point, most efforts to register a well-known emoticon, such as a "standard" smiley face, as a trademark would face a high hurdle in overcoming an ornamental refusal, e.g. lots of use in lots of ways that consumers recognize as trademark use. As we have written here before, an ornamental "mark" is one that serve primarily to makes the product more aesthetically appealing to consumers. It can be good, but it is not enough for trademark rights.
Have a good day : )
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