Man trademarks ;-) emoticon

A Russian businessman has trademarked the combination of semicolon, dash and bracket that make up a winking face 'emoticon' in texts and emails. Oleg Teterin, President of mobile advertising company Superfone, doesn’t intend to stop the average Joe from using the linguistic emotion without his permission. But he will send …

[Anonymous Coward]

Prior art?

Here's an interesting post from 2002:

http://groups.google.com/group/alt.elvis.king/browse_thread/thread/44638dfeb010f2c9?q=smiley

[Les]

Prior art, or something...

As Despair, Inc have already (allegedly) trademarked the :-( emoticon, and could claim that others are similar, I don't think this will stand..

http://despair.com/frownonthis.html

Of course, it was *funny* when they did it...

[Rob]

CUNT

That is all.

[Anonymous Coward]

Whew!

I want to trademark *rofl* so I can sue the Price Money out of L33t-gamers.

Is it just me or does the law get more obscure every day?

[Christoph]

Rather out of date

http://www.russiatoday.com/features/news/34577

"Russia’s patent authority, Rospatent, has ruled that the smiley graphic cannot be registered as a trademark."

[Simon]

Haw haw!

OMG thats hilarious ;-)

Aww, could this be a friday afternoon story ;-)

Good luck to the guy, he should also trademark being a clueless idiot ;-)

[Pete Wilson]

Emoticon

Despair Inc had a trademark on the frowny emoticon many years ago...

http://despair.com/acompromise.html

-- Pete

Paris, to make up for the frown...

[Flugal]

Marketing exercise

I wonder, just maybe, if he's aware of how utterly ludicrous this trademark is, but also knows how to get some free publicity from the media?

I expected better from El Reg*

* In the same way I expect Wacki Jaqui to care about individual freedoms.

[Tony]

Yeah right.

Surely to trademark something you have to actually prove that you own it in some way - Either you developed it yourself or you paid someone to develop it for your company?

It's like me trying to trademark the symbol '&' and demanding royalties from anyone that uses it!

Incidentally I think he might find that he is counter-sued by LG as 'his' emoticon looks an awful lot like their already trademarked logo:

http://www.pclaunches.com/entry_images/0807/24/lg-logo.jpg

That would be a fun lawsuit!

;-)

[Richard]

I'm no law buff but...

I thought you couldn't trademark something that is in common use within a certain context. The smilie already existed, so he can't copyright it. I wouldn't, for instance, be allowed to trademark "lol", "wtf" or even "Hello" for use in texts and emails, because they're already widely used.

Isn't this also why google wanted to stop people using their name to refer to the use of any search engine, as it would weaken their hold on the trademark?

[Anonymous Coward]

Nice scam...

Assuming that most business are such a happy place that they even use emoticons much, how does he plan on monitoring/enforcing this?

[Mike Arthur]

No Chance

he should also trademark being a clueless idiot ;-)

not a feckin prayer, uk government have that one sown up already

Paris, natch....

[Ralph B]

Been there, done that.

http://www.despair.com/acompromise.html

[Stephen Sherry]

With my time machine...!

I have trademarked the words the, and, or, an, and but... but only in the arial font. Where's my money MS!? I know I'm owed trillions, but I'll settle for mere billions. I'll have my lawyer call your lawyer army commander and we'll work something out.

[Matthew Sinclair]

T.T;

Maybe I Should trade mark the

.

Because every time you use the

.

I get 10,000 dollars.

I also have a bridge with your name on it in New York.

Yeah..right....

;-)

So sue me.

X O D

[Jonathan Richards]

Ask your lawyer...

...for a quick five minutes on the differences between trademarks (used to mark items of trade, unsurprisingly), patents (to protect inventions) and copyright (to protect expressions).

Here's my IANAL summary: You can license patents and copyrights, but not trademarks, so the bloke is off his trolley. An emoticon is not patentable, nor yet copyrightable, so fuggedaboutit.

[Keith Oborn]

IBM--

Back in the day, IBM managed to trademark /2 as part of the PS/2 launch--.

[Lionel Baden]

Anonymous coward

Well i will counter you by trademarking l33t and be done with all of it ;)

woops i used ;)

bad me :(

oh dear thats bad too !!!

ill go broke at this rate :)

must trademark @ whilst im at it !!

[Anonymous Coward]

Eat this bitch!

;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-) ;-)

sue me :P

[Jimmy Floyd]

@Richard

Yep, that's exactly why Google have that (understandable) attitude. Hoover, Xerox, Kleenex and, to a certain extent, iPod already 'enjoy' weakened holds on their trademarks. The trade-off, of course, is getting free publicity every time sometime cleans, photocopies, sneezes or overpays for restricted-use music.

Mine's the one with the Durex in the pocket.

[Anonymous Coward]

Prior art isn't a barrier

Consider that the Royal Mail reckon to have a trademark on the colour red for instance.

Having a trademark and being able to enforce it are two separate issues though - trademarks are only valid within a specific area or domain. Even then I can use the trademark in a relevant context without permission - I don't need to pay Microsoft royalties for using their name in this sentence for example.

So, let him waste his money if he wants to. It'll serve as some punishment for being such a stupid, money-grabbing imbecile in the first place.

[Hollerith]

He's in trouble

As I've trademarked 'Russia', 'Russian', 'Russian businessman' and 'owner of an emoticon' as trademarks and I'm going to sue his ass off.

[Anonymous Coward]

How trademarks work

I'm not a trademark expert, but I don't see why he shouldn't use ;-) as a trademark. Of course, he'd have to decide what category or categories of goods or services he wants to register it for. Then he could complain if someone else uses the mark to describe their own goods or services in the same category or categories.

There are dozens of registered trademarks consisting of just the word "SMILE". Go and look at www.ipo.gov.uk, if you don't believe me.

[Mike Moyle]

I have just one thing to say...

:-P **Pp-p-p-t-t-h-b-b-b-t!!!**

[Peter Ford]

Just use another font

As far as I know (IANAL) you trademark the typeface and so-on as well - the whole logo.

So we just need to know which font he used in his trademark application (comic sans MS, probably), and pick another one...

[Rock Lobster]

Why...

Why is this on "reg hardware"?

[Anonymous Coward]

"Registered" Trademarks and Trademark

Trade marks aren't the same as copyrights or patents.

Also, when a mark is registered, it is registered in certain defined classes of product/service/etc. That is why Bass could register a red triangle as the first ever UK trade mark. They did not invent the red triangle, and cannot claim sole use of it. However, if another brewer was to associate their beer with the red triangle, they could be infringing.

Note also, that "asserting" a trademark is possible simply by writing TM after it, similar to the way copyright is asserted. This indicates "I am using this as my trade mark"

[Vladimir Plouzhnikov]

Turned out it was a bit of corporate PR misrepresentation

They have registered their trademark which contained their logo with the smiley in it. They were not allowed to register the smiley alone. So, it's a non-issue.

[Anonymous Coward]

Re: Prior Art

Trademarks don't work like that. "Prior Art" is not generally an issue; it's not like a patent.

You can trademark most things, including most common sayings or words, as long as nobody else has already registered the mark.

You also, generally, have to restrict a trademark to a particular area of business; straying from this results in the problems with the Apple trademark

[The Fuzzy Wotnot]

Yep, you do that!

You know what, the minute people may have to pay they will stop using it, invent a new one or more likely not give a monkey's, and you will look a bigger nob than you already do!

[Anonymous Coward]

OMG n00b reporter!!

Bullshit!

Research before you post a report. Oleg Teterin's request for trademarking was refused by the Russian patent offce with the reason that regular symbols can't be trademarked. In Germany the Deutsche Telekom tried similar with their signature magenta letter T and failed.

[Maty]

Its worse than you think

My company Elithio Ideas inc. has trademarked the simple dot - as in the one under the vertical line at the end of this sentence!

Our lawyers estimate that you lot who have posted comments already owe us £100,000 (or €20) apiece. (And that's just for the full stops. We're letting you off the ones over the i as a goodwill gesture.)

As for El Reg itself, a look at past pages shows that it owes several multiples of the national debt, and the bailiffs will be around on Monday to collect Sarah B (or 'The Moderatrix') in part-payment.

[Mr Grumblefish]

I assume you mean wanker in chief

I hope so.

[James]

WTF!

Seriously! WTF! So now one day I'll get a letter saying I owe some twat x amount in fees for emails and text messages I sent that contained a smiley face. Oh, and lets not forget IM and IRC etc...

What Rob said.

[IMVHO]

They beat Metallica (TM) to it?

After the guitar chords D and E, when used in a particular series, were deemed "Mine!" by Metallica, how can this surprise <insert emoticon> anyone? I have two ideas... shhhh. First, "ing". Those three characters, when used together, are MINE. Second, the sounds "faa", "uck", "mmmm", and "eeee"; again, when used in a particular series, are MINE!

This last idea is a stretch, but it could be lucrative (after-all, damage to my business is not a consideration of any of these suits, only the potential advantage to my business; no, I have not worked for SCO). I shall trademark, patent, copyright, DRM, and in any and all other ways preserve for my use, the action of the frivolous trademark, patent, copyright, and/or DRM lawsuit. Ehhhh? Uhhhh?

MINE!

Paris, because "that's hot (tm)".

[Matt Piechota]

RE: I'm no law buff but...

<i>I thought you couldn't trademark something that is in common use within a certain context.</i>

You'd think that, but Microsoft trademarked 'Windows', which was already a computing term. I think of trademarks as slogans that no other business has thought of using yet. Like, 'We're there when you need us' is trademarked by Tuscon Electric.

- Insert some tenuous linkage to Paris Hilton here so people on the internet think I'm witty -

[Graham Marsden]

Exactly what trade is he in...

... that a ;-) smiley could be considered a unique way of representing his business?

Is Trademark Whoring a business?

[Henry Wertz]

Trademark, copyright, patents

"Surely to trademark something you have to actually prove that you own it in some way - Either you developed it yourself or you paid someone to develop it for your company?"

Nope. Trademark is not a patent, it is just claiming use of a particular logo or symbol for your particular line of business (plus trying to deny use of "confusingly similar" logos and names.)

"I thought you couldn't trademark something that is in common use within a certain context. The smilie already existed, so he can't copyright it."

That's right, except they were claiming trademark, not copyright. And apparently, per a few posts above (the post by Christoph), the Russian trademark agency agreed, the trademark was denied.

To avoid confusion...

Patents cover inventions*, trademark covers logos and names, and copyright covers copying creative products**. Coca Cola for instance -- if I tried to clone Coca Cola, if the formula is patented they could try suing for patent infringement if my copy was close enough (really they couldn't, any patent would have expired over 75 years ago, but...) If I called mine Coca Cola, they could get me for trademark infringement, or if I used like a similar logo but called it Coka Cola or something. It's supposed to be based on the logo or name being similar enough to cause confusion. Copyright? Wouldn't apply as much (since it's more for books, music, movies, software, etc.), but if I copied the non-logo graphics for my bottles, they wouldn't be covered by trademark but would be copyrighted.

*Patents cover inventions, plus whatever other crap the local patent office allows people to slip by... in the US for instance, they allow software patents (ugh), they allowed business method patents until recently (ugh!!), and I think may still allow genetic patents (ughhhh!!!!!).

**Creative products -- so copyright isn't supposed to apply to just data collections. But, despite this there've been copyright cases here in the US about copying data (in bulk) from phone books and Westlaw, they do both assert copyright even though by strict interpretation it's just a collection of phone numbers and legal cases. It's legally clear cut, but in actual cases, they'll be like "collecting all that info is a lot of work", and some judges (contrary to the letter of the law) decide it's copyrighted.

[Anonymous Coward]

He got stung

Trademarks aren't patents. He would only be able to sue people for passing-off, not just using the letters in normal communications otherwise trademarks like Orange, Apple, Sun etc couldn't be used which would be stupid. And if the item is generic in it's context it can't be trademarked.

I think he got stung by a lawyer looking for a mug who doesn't understand the difference.

[Anonymous Coward]

@Richard

Yeah, same thing with Kleenex, Dumpster, Xerox, and (for you Brits) Hoover. I'm not a lawyer, but my sketchy understanding is that you don't have to actually PREVENT said usage, but just make a reasonable effort to show that you care. Clarification from people who actually know is appreciate, though. ;-)

[vincent himpe]

That's what happens

if you drink cheap wodka ... you either go blind or become braindead.

[Anonymous Coward]

Winker in chief?

Winker in chief? Winker? More like W%^@

no carrier

[Anonymous Coward]

Thees iss Meestir Teterin...

...My Goons-, er, associates, weel be by -wery soon- to peek up your protection- er, licensing fee for using trademark icon een story.

Look for spleentered door...

[Danny]

Ads aren't interesting enuff

Just yesterday someone alerted ElReg to the fact that you had reprinted a viral while passing it off as a story. Now you are doing it again. What does a lawsuit cost for - insert name of company - compared to the free press you have just delivered for a barely funny story ? Yet some other interesting ElReg story has just disappeared.

Please, some other El Regian please slapdown this 'author' for brining you all into disrepute.

[Anonymous Coward]

Certain context

Well, obviously, since a trademark only applies in certain contexts, his must be on the use of a ;-) when being a litigious idiot who was swindled into thinking this trademark meant something. Luckily, that's a pretty narrow use case.

Anonymous and leaving, in case he's a certain kind of "Russian businessman"

[Inachu]

The man who sent the very first email did the first smiley

The man who sent the very very first email did the first smiley.

So that is over 30 years ago.

The Russian business man is digging a very big grave for himself.

[Anonymous Coward]

Doh, ray me

I can just imagine Rogers & Hammerstein trademarking/copyrighting do, re, mi from the Sound of Music... The songs are one thing, the concept of using do, re, mi for the musical scale is another. After all, it was already in common use before the song was written. Ditto, all the emoticons have been in use since the 70's or earlier. I have a very old list of them all from the late 70's (a couple of text pages w/ icons and definitions) from someone who was a Multics user. Too bad they didn't copyright them at the time... ;-) ;-)

[Anonymous Coward]

I have an emoticon he can trademark

(_!_)

especially that little dot at the bottom of the a5$crack which is what he is

[Anonymous Coward]

@AC

"....Consider that the Royal Mail reckon to have a trademark on the colour red for instance...."

he's right you know:

http://bilgebrain.net/2006/08/04/lets-paint-the-town-er/

i'm taking out a patent on smelling slightly of peat. so anyone out there thinking of it - just watch out!

[Anonymous Coward]

@madra

"i'm taking out a patent on smelling slightly of peat. so anyone out there thinking of it - just watch out!"

Damn. There's a few nice malts that I won't be able to afford anymore!

[Dave]

Pillarbox Red

You'll find that the post office has trademarked a particular pantone reference, and tint of Red, Other companies and brands have done the same for the shade they like to be associated with.

I wouldn't surprised for instance if a certain Telecoms provider named after a certain citrus fruit which is also a colour, has trademarked that as well.

Now what would Paris trademark, hmmmm?

[Seán]

Clip Art

Surely it'd be cheaper or at least more satisfying to have this guy killed. it's a one off payment and definitely a more satisfying transaction. He started playing silly buggers after all.

[ShaggyDoggy]

@ Keith Oborn re IBM

Actually it was worse, they tried to trademark the slash /

Failed of course

[Andreas]

Copyright Symbol

I'm going to copyright the copyright symbol...

[Andreas]

...Trademark Symbol

...and trademark the trademark symbol, of course!

[TeeCee]

@madra

Not just the Royal Mail. I know a chap in the aircraft painting business (that's painting aircraft, not painting pictures of aircraft).

His mob recently had a whole load of newly-painted yellow freight planes owned by a company in Germany sent in to be repainted. Apparently the yellow colour they chose was deemed a tad too close to Deutsche Post yellow for the German courts.

Off now to sue Mr Teterin for his blatant infringement of my trademark of the word "fuckwit".

[Jason]

What a....

Stupid Winker ;o)

[OFI]

Despair..

Just tried to 'buy' 999 'frownys' from Despairs website, but you can't...

"Sorry, but there's a $19.90 order minimum. Dr. Kersten isn't running an "Everything's 99 Cents" franchise, he's building an empire. And he can't keep himself in the latest gear with a bunch of $1 orders... "

I think it's a scam..

[M Gale]

Only applies to similiar products/services?

All this stuff about trademarks reminds me of a company that makes a fairly well known web browser. Apparently they changed the name because people might confuse a bit of software with a crap ancient car designed by Pontiac.

Jolly Roger, because the Intellectual Property lobby needs keel-hauling. Arr!