Emoticons and Emojis... can they be protected?

An emoticon etymologically a portmanteau of emotion and icon, is a metacommunicative pictorial representation of a facial expression that, in the absence of body language and prosody, serves to draw a receiver's attention to the tenor or temper of a sender's nominal non-verbal communication, changing and improving its usually distinguished as a 3-5 character piece — usually by means of punctuation marks (though it can include numbers and letters) — a person's feelings or mood, though as emoticons have become more popular, some devices have provided stylized pictures that do not use punctuation.

In Western countries, emoticons are usually written at a right angle to the direction of the text. Users from Japan popularized a kind of emoticons called kaomoji (顔文字, often confused with emoji in the West) that can be understood without tilting one's head to the left. This style arose on ASCII NET of Japan in 1986.

A few years ago, Gap Inc. and Diane Von Furstenberg’s company DVF Studio asked the federal court in the Southern District of New York to rule on whether the heart emoticon <3 can be protected as a trademark. Their declaratory judgment complaint filed against VeryMeri Creative Media Inc. contended that VeryMeri could not claim intellectual property rights in its stylized heart logo, which consists of or incorporates the <3 emoticon, since that logo/emoticon is “widely used in connection with apparel and related products,” since the stylized heart logo “is nothing more than a commonly used and well-known ‘emoticon’ or metacommunicative pictorial representation of a heart design,” and because “no one entity can be said to have the exclusive right over all forms of this [emoticon heart] design.”

The debate over the protection of emoticons and emojis is still puzzling jurists in many different countries.

The question is raised as to whether commonly used words or designs or other stylistic elements can ever function as trademarks. Generally speaking, the answer to this question is almost always a resounding “yes.” If a word, design, or other stylistic element is being used properly as a trademark on a product or as a service mark to advertise and provide a service, and does not violate any of the restrictions imposed by the trademark law, it can function as a trademark and be registered.

As far as emoticons are concerned, the US Trademark Office has, in fact, allowed registration of emoticons as trademarks. The emoticons ; ) , :o) , : ) , *-)- , and : – (  have all been registered as trademarks by different entities for use on and for various goods and services including alcoholic beverages, clothing, online retail store services, cellular telephones, communication services, hardware and software, greeting cards, posters, art prints, calendars, postcards, and note cards. Thus, it seems in principle that an emoticon per se is capable of functioning as a trademark. 

Another question arises on the protection of emojis and emoticons under copyright law. In principle, any creative content that is fixed in some expressive format will be covered under copyright protection.

Readers may have noticed that the emojis found on Apple products are not the same as you find on others like the Blackberry, for example. 

We believe that the simple, yellow, face-type emoticons used by Apple [and many others] are copyrightable. The online Copyright Office database of registered copyrights has no record that Apple has registered any such emoticons [which would be unusual for Apple’s legal department]. It likely hasn’t because, for one reason, the Copyright Office position is that: “Well-known and commonly used symbols that contain a de minimis amount of expression or that are in the public domain, such as the peace symbol, gender symbols , the symbols for “play, pause, stop, forward, back,” simple emoticons such as the typical smiley face, or the “like” are NOT copyrightable

 So while we would agree that perhaps some of the most general ones MAYBE are too standard to claim copyright protection (e.g. a standard smiley face with yellow background and black dot eyes and black penciled smile) most other emoticons will certainly be protected and they could not be used as wished without seeking a license.