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Emojis, emoticons and intellectual property law

From t-shirts to movie posters to print advertisements, emojis and emoticons have made their way into a wide variety of commercial applications. The creative and marketing potential offered by these eye-catching and youthful images and text strings may be vast, but their newness also means that intellectual property lawyers are facing unique copyright and trademark issues regarding their use.

What exactly are emojis and emoticons?

So how exactly does trademark and copyright law apply to emojis and emoticons? First, let's define what emojis and emoticons are.

  • Emoticons are the older invention and consist of strings of letters, numbers and punctuation marks used to create a rudimentary image: ":)", ":-P" and ";^(" are all emoticons.
  • Emojis are pictographs intend to convey the same emotions and sentiments as emoticons; they are Unicode characters, meaning that they follow universal computing industry standards and should appear the same across computing platforms.

Emoji protection

In other words, emojis are essentially just letters and numbers, and a specific emoji (like a smiley face or a pair of clapping hands) can be copyrighted no more than the letter "G" or the number "5" could be. Specific ways that emojis are represented, however, are akin to typefaces, which can be copyrighted and protected from unauthorized commercial use.

For example, Apple has a copyright on the set of emoji representations that they use on their iPhone operating systems and can certainly use their extensive legal team to bar others from using their particular designs in commercial applications.

Emoticon protection

Likewise, the U.S. Trademark Office has allowed a number of companies to registered various emoticons as trademarks. The emoticons ":-(", ":)", "*-)-", ":o)" and ";)" are all registered trademarks of a range of entities who use the symbols on clothing, greeting cards, art prints, postcards, alcoholic beverages, posters and more.

Still, questions remain over exactly what emoticons can be protected through trademark and in what applications. For example, fashion brands Diane Von Furstenberg and Gap have a pending court case against VeryMeri Creative Media over the latter's attempts to trademark the "<3" emoticon.

Available options

Companies looking to use emojis on their products or in their advertising campaigns do have options, however. Several emoji set creators such as EmojiOne provide free commercial licenses for their emojis (with proper attribution, of course). And since the idea being represented by an emoji or emoticon cannot be copyrighted or trademarked, any entity looking to use emojis or emoticons commercially can just create their own.

If you have questions about copyrights, trademarks, emojis or emoticons, your best bet is to contact a qualified and experienced intellectual property attorney. Since their is little guidance or precedent on the issue, don't hesitate to get professional advice before blazing your own trail.

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