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

from the not-so-smiley-now? dept

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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Companies: wal-mart

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

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18 Comments
DanC says:

Re: 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.

DanC says:

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.

Anonymous Coward says:

Walmart sucks!

Hey Wal-mart, trademark this -> ๐Ÿ™‚ ๐Ÿ™‚ ๐Ÿ™‚ ๐Ÿ™‚ ๐Ÿ™‚ ๐Ÿ™‚ ๐Ÿ™‚ ๐Ÿ™‚ ๐Ÿ™‚ ๐Ÿ™‚ ๐Ÿ™‚ ๐Ÿ™‚ ๐Ÿ™‚ ๐Ÿ™‚ ๐Ÿ™‚ ๐Ÿ™‚ ๐Ÿ™‚ ๐Ÿ™‚ ๐Ÿ™‚ ๐Ÿ™‚ ๐Ÿ™‚ ๐Ÿ™‚ ๐Ÿ™‚ ๐Ÿ™‚ ๐Ÿ™‚ ๐Ÿ™‚ ๐Ÿ™‚ ๐Ÿ™‚ ๐Ÿ™‚ ๐Ÿ™‚ ๐Ÿ™‚ ๐Ÿ™‚ ๐Ÿ™‚ ๐Ÿ™‚ ๐Ÿ™‚ ๐Ÿ™‚ ๐Ÿ™‚ ๐Ÿ™‚ ๐Ÿ™‚ ๐Ÿ™‚ ๐Ÿ™‚ ๐Ÿ™‚ ๐Ÿ™‚ ๐Ÿ™‚ ๐Ÿ™‚ ๐Ÿ™‚ ๐Ÿ™‚ ๐Ÿ™‚ ๐Ÿ™‚ ๐Ÿ™‚ ๐Ÿ™‚ ๐Ÿ™‚ ๐Ÿ™‚ ๐Ÿ™‚ ๐Ÿ™‚ ๐Ÿ™‚ ๐Ÿ™‚ ๐Ÿ™‚ ๐Ÿ™‚ ๐Ÿ™‚ ๐Ÿ™‚ ๐Ÿ™‚ ๐Ÿ™‚ ๐Ÿ™‚ ๐Ÿ™‚ ๐Ÿ™‚ ๐Ÿ™‚ ๐Ÿ™‚ ๐Ÿ™‚ ๐Ÿ™‚ ๐Ÿ™‚ ๐Ÿ™‚ ๐Ÿ™‚ ๐Ÿ™‚ ๐Ÿ™‚ ๐Ÿ™‚ ๐Ÿ™‚ ๐Ÿ™‚ ๐Ÿ™‚ ๐Ÿ™‚ ๐Ÿ™‚ ๐Ÿ™‚ ๐Ÿ™‚ ๐Ÿ™‚ ๐Ÿ™‚ ๐Ÿ™‚ ๐Ÿ™‚ ๐Ÿ™‚ ๐Ÿ™‚ ๐Ÿ™‚ ๐Ÿ™‚ ๐Ÿ™‚ ๐Ÿ™‚ ๐Ÿ™‚ ๐Ÿ™‚ ๐Ÿ™‚

Marsha Hendershot says:

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….

terry wagar says:

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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