Wal-Mart's Trademarked Smiley Face Turned Upside Down; Parody Isn't A Trademark Violation

from the not-so-smiley-now? dept

Mon, Mar 24th 2008 5:55am — Mike Masnick

Paul Alan Levy writes "In a new decision, a federal judge in Atlanta has rejected a claim by Wal-Mart that parody t-shirts and bumper stickers sold over CafePress.com, using the phrases "walocaust," and "wal-qaeda," violate its trademark. The court ruled that the fact that the parodies are sold on t-shirts does not detract from the non-commercial nature of the expression, which takes them outside the scope of trademark dilution law, and requires a treatment of infringement claims that is sensitive to free speech rights. The court also rejected out of hand Wal-Mart's outrageous claim that has trademark rights in the yellow "smiley-face" that the parodist used in one of his anti-Wal-Mart designs."

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Filed Under: parody, smiley face, trademark
Companies: wal-mart

18 Comments

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Anonymous Coward, 24 Mar 2008 @ 6:32am

Walmart sucks.
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- pam, 20 Oct 2008 @ 7:01am
  
  Re:
  WALMART ROCKS!
  WHAT THE HELL DO YOU KNOW!
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Matt Bennett, 24 Mar 2008 @ 7:06am

Wasn't some other guy, who came up with the smiley face in the 60's trying to enforce copyright on the smiley? Wouldn't he own it, and walmart would have to license it from HIM?
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- DanC, 24 Mar 2008 @ 8:00am
  
  Re:
  Wasn't some other guy, who came up with the smiley face in the 60's trying to enforce copyright
  
  Trademark, not copyright. Frank Loufrani registered the trademark in 1971, but claims he came up with the smiley face in 1968. He tried to apply for a U.S. trademark in 1997, but Walmart opposed it. Neither one of them deserves the trademark - the symbol is far too common, and appears on too much merchandise for any one company to claim ownership.
  
  There's plenty of doubt as far as Loufrani's "creation" of the smiley face as well. Harvey Ball claims to have created it in 1963 in Massachusetts.
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  - SteveP, 24 Mar 2008 @ 9:25am
    
    Re: Re:
    Everyone knows it was Forrest Gump
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  - Matt Bennett, 24 Mar 2008 @ 11:46am
    
    Re: Re:
    I think it was Ball I was thinking of, I think he was trying to enforce an actual copyright, getting sales of t-shirts and whatnot banned.
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    - DanC, 24 Mar 2008 @ 11:59am
      
      Re: Re: Re:
      Then you aren't thinking of Harvey Ball. He never tried to copyright or trademark the smiley face.
      
      Must be someone else.
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      - PAM, 20 Oct 2008 @ 7:02am
        
        Re: Re: Re: Re:
        harvey ball supposibly invented it. he was helping a client in an insurance company ad.
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- Phil, 24 Mar 2008 @ 1:10pm
  
  Re: Smilly creator
  It was some other guy, he died not long ago. But at the time he came up with it, he felt no need to patent it.
  
  Too bad he didn't
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  - DanC, 24 Mar 2008 @ 1:31pm
    
    Re: Re: Smilly creator
    he felt no need to patent it
    
    He wouldn't have been able to patent it. Patents are for inventions, not for artwork.
    
    He could have applied for a copyright, but it most likely wouldn't have mattered, due to the murky history of the smiley face. Including your "some other guy", we've identified 3 people who claim they created the smiley face.
    
    And Harvey Ball died in 2001. I'm thinking he's probably the guy you're thinking of, but all he ever wanted was recognition for the creation. He never tried to enforce his copyright.
    
    Loufrani, on the other hand, has filed trademark lawsuits in Europe over its use.
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Anonymous Coward, 24 Mar 2008 @ 10:36am

Walmart sucks!
Hey Wal-mart, trademark this -> :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :)
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Overcast, 24 Mar 2008 @ 10:42am

Streisand Effect...
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- Anonymoose, 24 Mar 2008 @ 10:51am
  
  Re:
  Streisand Effect? Are you serious? Google something before you go blindly assuming that every piece of news is the Streisand Effect...
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  - Anonymous Coward, 24 Mar 2008 @ 10:56am
    
    Re: Re:
    Ha ha ha ha ha ..... I'm just gonna start posting "Streisand Effect" now too - it sure makes you sound smart hey???
    
    I shop at Walmart. Why? They're fucking cheap and I don't give a crap about the mutants who work there!
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Etch, 24 Mar 2008 @ 11:24am

Wal-mart
What about South Park and their Episode titled "The Wal-Mart" where the kids have to go destroy the heart of the wal-mart in order for it to implode upon itself! lol
They actually use the real name and likeness! If they can't sue South Park then they definitely can't sue a T-Shirt maker!
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Marsha Hendershot, 26 Apr 2008 @ 5:57pm

HAPPY FACE
Will look how not smile..........

I wish every one would just keep dogg'n the idiots
What! I don't understand is What about ALL the Women that worked for W-M befor the big law suit...from, I believe 1995 forward...We were victims of the very some things they went
and even worse....And so did some of the guys...I helped open up the 3rd store Tulsa,OK.1985 and we had to endure horrible
treatment....
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terry wagar, 9 Jun 2008 @ 12:31pm

clackamas walmart in portland oregon frames people as pedo's so they can murder them and get away with it, they are hideing a man named eric carlson, he worked there for over a year around mid 2007 and mid 2008, he died his hair black and got a new identity from his friends in authority and now goes by the name gashel, last name unknown by me.
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Daniel, 16 Apr 2009 @ 8:00am

fkjdfkljdf
f;lkkjfkdjgl;kfg
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