In a move as bold as it is legally questionable, Superfone, a Russian mobile advertising company, has applied for a trade mark in respect of the characters ‘;-)’ (a winking emoticon). According to the certificate of grant, the registration applies to classes 35, 38 and 41. It’s unclear whether it extends to any territories beyond the Russian Federation.
Here’s what purports to be a copy of the application:
“I want to highlight that this is only directed at corporations, companies that are trying to make a profit without the permission of the trademark holder,” he said in comments to NTV.
Companies will be sent legal warnings if they use the symbol without his permission, he said.
“Legal use will be possible after buying an annual licence from us,” he was quoted by Kommersant as saying. “It won’t cost that much – tens of thousands of dollars.”
It’s hard to imagine a more laughable trade mark. Smiley faces — particularly 😉 and 🙂 — are so widespread that it seems improbable for them to be associated with particular goods or services. Emoticons are as generic as exclamation marks. While it’s not inconceivable that a brand could develop such an association with an emoticon that it would qualify for trade mark protection, the evidence doesn’t seem to support that conclusion here. Emoticons have been used generically for over 25 years, ever since Professor Scott Fahlman first used the smiley face in an email message. I wonder how many chumps will stump up for the licence fee…
