I <3 Ur Emoticon, But Does It Indicate Source :-/

by Winthrop & Weinstine, P.A.
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In a world where communications are shared in a space of less than 140 characters, emoticons are often a part of the lexicon for most texters, tweeters, gamers, and smartphone screen tappers.  I have an app, Emoji, that turns my phone’s keyboard into a glorious emoticon playground.  Facebook even lets you add an emoticon to share how you’re feeling in your status update.  Emoticons share a feeling, a laugh, or can indicate to a reader when I’m being sarcastic (sharing a similar wry, witty sense of humor, a friend of mine and I developed the || emoticon to end a sentence since sarcasm is difficult to convey in writing).  Brands often correspond with a feeling or memory that you correlate with that brand’s product or service, a feeling that brands try to capitalize on in their advertising material.

But can emoticons (and well-known ones at that) indicate source of goods or services?  Can a well-known, if not uniform, expression of a feeling indicate source?

We might soon see.  Last month, Gap Inc. and Diane von Furstenberg’s DVF Studio filed a lawsuit seeking a declaratory judgment regarding VeryMeri’s heart logo shown below.  VeryMeri is a children’s clothing store where kids can design their own shirts.  They seem to also sell t-shirts bearing various emoticons among other designs.

Their logo incorporates what appears to be the <3 heart emoticon.  This mark was applied for in connection with various apparel items.   The description of the mark is simply “the mark consists of a stylized heart.”  It was published for opposition back in July but no one opposed it then (or sought to extend their deadline to oppose).

 

When turned on it’s side though, it looks like this:

 

In their declaratory judgment action, Gap Inc. and DVF essentially argued that the use of the <3 heart emoticon is so prevalent in apparel and related products that no company should have the exclusive right over the design.  When DVF worked with Gap on a collaboration product for children’s clothing, they used a DVF-created <3 pattern on some dresses and advertising material with the DVF pattern.

 

The companies received a demand letter from VeryMeri’s counsel seemingly alleging likelihood of confusion between the DVF pattern and their mark.  According to Law360's article on the dispute, an email from VeryMeri’s CEO to DVF’s lawyers stated “we will take further action, not only will our litigation lawyers take over but we will publish this case immediately within the industry. People like David’s fighting against Goliath’s [sic].”

As Steve wrote in his post on emoticons as trademarks back in 2010, the Trademark Office takes the position in its examining procedure manual (the TMEP) that “common expressions and symbols” are not normally perceived as trademarks.  TMEP 1202.03(a).

There’s certainly precedent for the allowance of emoticons as registered trademarks.   T-Mobile has a registration for :) for cellular phones.   There’s a registration for ;) for alcoholic beverages, except beers, and an individual registered  :o) for clothing. 

We’ll keep an eye on this one and see who reigns supreme.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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