Who Owns the "Frowny" Emoticon :-( ?

What happens when a company obtains a trademark on one of the most frequently used symbols of online life, the "frowny" emoticon? For millions of Internet users, the symbol rendered as " :-( " - a sequence of keyboard's colon, dash and parenthesis mark - is an arch way to convey sadness in email messages.

But is this widespread practice still legal? In 2001, Despair, Inc., a Dallas-based maker of spoof inspirational merchandise for the corporate world, played a colossal practical joke that exposed the absurdities of current copyright trademark policies.....Despair sought to have its corporate logo, the "frowny" emoticon, declared a legal trademark. It applied in 1998, and two years later, the U.S. Patent and Trademark Office actually awarded Despair a trademark in the emoticon [registration #2347676]. On January 2, 2001, Dr. E.L. Kersten, the Founder and COO of the company, announced plans to sue "anyone who uses the so-called 'frowny' emoticon, in their written email correspondence. Ever."

Playing the gag for as much as it was worth, the Despair press release announced that the company had "filed suited yesterday in a U.S. District Court in Dallas, alleging trademark infringement against over seven million individual Internet users. The company has requested separate injunctions granted against each. It is believed to be the largest single trademark dispute in history." The company even claimed it had used the FBI's controversial "Carnivore" Internet wiretapping system to identify the seven million individuals who had illegally used the :-( symbol in email.

What is trade mark infringement?

If you use an identical or similar trade mark for identical or similar goods and services to a registered trade mark - you may be infringing the registered mark if your use creates a likelihood of confusion on the part of the public. This includes the case where because of the similarities between the marks the public are led to the mistaken belief that the trade marks, although different, identify the goods or services of one and the same trader.

Where the registered mark has a significant reputation, infringement may also arise from the use of the same or a similar mark which, although not causing confusion, damages or takes unfair advantage of the reputation of the registered mark. This can occasionally arise from the use of the same or similar mark for goods or services which are dissimilar to those covered by the registration of the registered mark.

What is a trade mark?

A trade mark is a sign which can distinguish your goods and services from those of your competitors. It can be for example words, logos or a combination of both.

You can use your trade mark as a marketing tool so that customers can recognise your products or services.

A trade mark must be:

* distinctive for the goods and services you provide. In other words it can be recognised as a sign that differentiates your goods or service as different from someone else's.

Well the way it works in Germany is - the lawyers decide who infringes

and they send them a bill for the costs of processing the complaint .. around a grand !

If you pay, they go away .. and you only have 3 weeks to do so

After 2 weeks you MUST have signed an agreement of acceptance of wrongdoing

If you do not - they have you in court

Sadly they have lawyers with very expensive habits .. who are probably not first timers

so you're a bit f^&ked if you do and f$%ked if you don't