Smiley Face Is Serious to Company

Trademark and patent laws have not kept pace with globalization – and conflicting laws among nations raise the question about whether a trademark registered in one country has any bearing on use in another. “We may live in the era of globalization, but trademarks are still rooted in territoriality," explains one attorney who specializes in intellectual property. In 1997, the French company SmileyWorld filed for a US trademark for the exclusive right to commercial use and licensing of the term "smiley" in conjunction with the familiar logo of a yellow happy face. The claim was based on the company filing for a French patent on the face in 1971. Wal-Mart immediately registered opposition to the SmileyWorld attempt and filed its own application for trademark of the smiley face for all retail purposes. For its part, Wal-Mart cites US laws that place precedence on the first commercial exploitation of a symbol, as well as extensive use of any logo, which typically favors the biggest players. The US Patent and Trademark official will decide the case soon. But the winner certainly owes some thanks to Harvey R. Ball, who created the face as a button for a Massachusetts firm undergoing a rocky merger in 1963. Paid $45 for his design, the graphic artist never sought commercial rights or profit. – YaleGlobal