UNHAPPY SMILEY

Did you know that the word SMILEY is a trademark, as well as the Smiley emoticon?

These cheerful trademarks were registered by The Smiley Company, a company that issues licenses for the Smiley trademark for a wide range of products including shirts, shoes and food, illustrating that licensing can serve as a revenue model.

But can something as common as an emoticon also be a valid trademark that can be claimed by a company? That’s an interesting question. In our opinion, this largely depends on the products or services for which the trademark application has been filed. SMILEY has been accepted several times for jewellery, bags, cosmetics, etc., and is therefore regarded as a distinctive sign.

The same goes for the Smiley emoticon. This logo has been registered as a trademark many times in different variants. However, reservations have been expressed with regard to its scope of protection. After an opposition was filed against the figurative trademark Kala Hemp Studios (which has a large Smiley emoticon in the middle of the logo), the European Trademarks Office ruled that the Smiley emoticon only has a weak level of distinctiveness for the products in question.

The Smiley Company recently made an unsuccessful attempt to claim the Smiley emoticon for digital and virtual products, including NFTs. The European Trademarks Office reasoned that the relevant public would perceive the sign as the commonly used cheerful emoticon that we are all familiar with and would not consider such a simple figure as a trademark.

© The Smiley Company

Author: Arnaud Bos

Bio: Arnaud is trademark attorney and within Knijff responsible for the marketing & communication. Arnaud is specialist in the metaverse and music sectors and his client portfolio includes many upcoming and renowned bands. He keeps a close eye on the latest case law in the EU and will let you know when he sees remarkable applications.