2

Important disclaimer: this question is not about any particular set of emojis (designed by a company or whoever else). The pictures themselves are obviously intellectual property and belong to their creators. This question is about the word emoji and whether it can constitue a trademark or not.

The story behind this question is the following: I got lost on the Internet, and discovered that the French postal services were selling emoji stamps. Nothing too interesting here, except I noticed a detail which struck me: on the website, all the occurrences of the word 'emoji' were followed by a little ®, the registered trademark symbol. I never saw this symbol associated to the word emoji before. Digging further, I discovered that the emoji stamps were produced under licence from a German company called emoji company GmbH. I don't only mean that their pictures were used for the stamps. I also mean that (apparently) they seem to claim that the concept and the trademark emoji belong to them. Their website mentions:

We are the emoji company, the owner of the official emoji® trademark. [...] emoji® is a registered trademark.

They also claim to be 'the official emoji brand' (what 'official' means here is up to you), to be the 'iconic' emoji source, and to have discovered their potential back in 2013. They do not seem to claim they are their creators, though.

It seems very strange to me that 'emoji' can be registered as a trademark. First, it is a legit Japanese word (絵文字・えもじ) meaning pictogram. Second, it's a common word of everyday language in many parts of the world, many languages, and became so presumably before the emoji brand registered it. Third, this company is not behind the spectacular expansion of emojis as a mean of expression and their internationalization (Apple and other tech companies were behind it), nor are they their creators (a Japanese guy, if I'm correct).

I did more research and discovered that the emoji company is in fact associated to various trademark agreements which allow such big companies as Sony to use the word emoji (exemple: The Emoji Movie), and various products featuring emojis (food, accessories, etc.). However, they seem to kinda mix (in a subtle way) their claim of 'emoji' being a trademark, and the IP for the icons they sell themselves.

So, are we now in a world where using the word 'emoji' without authorization is illegal? Should we really give royalties to this company whenever this word or this concept is used? Is there a strong base for their claim, or could it be challenged? And could even Apple or Facebook end up having to pay this company to provide emojis on their platforms?

|improve this question
  • 2
    Today's word is "genericization". Short version: no, no, barely, maybe but probably not. – cHao Mar 24 '18 at 14:00
2

We are in a world where a word could be a trademark, and where trademark rights can be sold. Trademark protection does not create absolute ownership of a word in all contexts, so if 洗熊 is conventionally known as an 絵文字 in Japanese, then that use is not protected. A trademark is in a particular domain, which which distinguish 💃 from Japanese kanji. Similarly, "Apple" is generally a generic (unprotected) term, but in the domain of computers, it is a registered trademark. In that world, you can't sell a computer or an emoji using the protected name without a license, but anybody can talk about their Apple or their emoji. A crucial legal question will be whether a companying selling a product is "holding themselves out" as offering "emoji brand", or just a thing generically known as "an emoji". The courts somewhere may indeed find that "emoji" is a generic term. What is not in question is the copyright status of the art that an emoji embodies. I think we would have to inspect the license to see exactly what the company claims that it is licensing.

|improve this answer
  • Sorry but your main argument is unclear to me. Using ‘emoji’ as a common word cannot be equated to saying ‘my Ford’, ‘my Big Mac’ or ‘my Apple’. Using a trademark to designate an instance of this brand’s products is very different to using a common word in its primary meaning (pictogram) claimed as a trademark in that very area. The name Apple may be fine as long as we’re not talking fruits, but what if I register ‘computer’ as a brand of computers, and claim to be the iconic one, the only one and asks for royalties? Which is almost what this company is doing btw – Zozor Mar 24 '18 at 17:02
  • 1
    You can't register "computer" as a trademark: it is a generic term. "Emoji" is a registered trademark, although court proceedings might eventually invalidate that trademark. BTW I am not making any "argument", I am describing how trademark law works; I am not arguing for the merits of this particular registration. – user6726 Mar 24 '18 at 17:15
  • 2
    @user6726: you can't register "computer" as a trademark for selling computers, but couldn't you, analogous to the non-food use of the generic term "apple," register it as a trademark for selling something else? Computer brand apples, perhaps? – phoog Mar 24 '18 at 20:49

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.