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Why an Emoticon Won’t Get an EU Trademark :-(
Issued: January 01 2009A Russian businessman says that he has trade marked the emoticon and that commercial uses of punctuation marks to convey a wink will require a licence costing more than US$10,000. A UK trademark attorney said that the businessman’s demands will be irrelevant to uses in the EU.
The BBC reports that entrepreneur Oleg Teterin claims that his registration for a trade mark over the sequence of semi-colon, hyphen and closed-parenthesis – ;-) – has been granted by Russia’s federal patent agency. Teterin told Russian TV channel NTV that companies will be asked to pay an annual licence fee of “tens of thousands of dollars” to use the emoticon. He will not charge individuals who use punctuation marks to wink at each other in their electronic communications.
“He also said since other similar emoticons – :-) or ;) or :) – resemble the one he has trademarked, use of those symbols could also fall under his ownership,” the BBC reported.
But a British trademark specialist said in December that the symbols would not be eligible for protection in the EU.
Such a registration could be objected to on two basic grounds, according to Lee Curtis, a trademark attorney with Pinsent Masons, which reported the case through its Out-Law News service.
“Firstly, the emoticon is effectively not acting as a badge of trade origin. In the main, trademark registrations protect terms which distinguish the goods and services of one trader from those of other traders. I doubt the public would ever view a ;-) emoticon as a trademark,” Curtis said. “The ;-) is descriptive of a feeling rather than the goods and services of any one trader. The emoticon simply does not act as a badge of trade origin.”
He notes that emoticons are now so widely used that they have “effectively become descriptive terms in common parlance. Thus, even if one could argue that when the emoticon was originally devised that it was capable of acting as a badge of origin, the term is now so widely used that it has effectively become a term of art. The use of emoticons has not been controlled by a single entity and effectively the public owns the term now.”
