Judges Interpreting Emoticons? :-(

Legal Issues

from the ^_^ dept

While we’d already written about the judge’s ruling in the Lenz vs. Universal lawsuit concerning a bogus DMCA takedown and whether or not damages could be awarded, there was one bit of the ruling which Eugene Volokh recently highlighted, which seems worth mentioning, if only for the amusement factor. Apparently, part of determining whether or not there was actual harm done to Lenz was looking at some email communications, including one where a friend used an emoticon:

Universal … argues [as a defense to Lenz’s lawsuit] that there are triable issues of fact as to whether Lenz has “prosecuted in good faith the assertion that she has been damaged” by Universal’s alleged violation of [the DMCA]. This argument is based on four separate contentions…. [The fourth is] that an email exchange between Lenz and one of her friends shows that Lenz does not believe that she was injured substantially and irreparably by the takedown notice. In the exchange, Lenz responds to her friend’s comment that the friend “love[s] how [Lenz has] been injured ‘substantially and irreparably’ ;-)” by writing “I have ;-).” The (“;-)”) symbol, according to Lenz, is a “winky” emoticon which signifies something along the lines of “just kidding.”

At her deposition, Lenz testified that she believed her friend’s use of the emoticon “was kind of a reference back to [the] lawyerese” of the “substantially and irreparbly harmed” language and that her use of the emoticon was “a reply to the wink that [her friend] used.” Lenz maintains that the fact that she “believes that lawyers sometimes use stilted language is not evidence of bad faith.” …

While it’s fascinating to see Universal using a friend’s use of an emoticon to try to prove its point, it does seem like things could get a bit dicey when we have judges trying to interpret things like emoticons.

Filed Under: emoticons
Companies: universal

;-) Available For Yearly License Fee Thanks To Russian Trademark

Too Much Free Time

from the so-sue-me-;-) dept

Way back in 2001, Despair Inc., makers of the world’s greatest calendar (I’ve got a bunch) trademarked the emoticon 🙁 and jokingly threatened to sue pretty much everyone. Some folks in the press thought they were serious, and it got into the news. It looks like someone over in Russia is trying to do the same thing… but it’s not clear if he’s joking. Oleg Teterin, president of some mobile advertising company, not only has received the trademark, but says that any business using it, or any similar emoticon, now needs to pay a license fee: “Legal use will be possible after buying an annual licence from us. It won’t cost that much – tens of thousands of dollars.” He does make clear that he’s only talking about businesses using the emoticon, not consumers, but even then some people wonder if this is just a big publicity stunt. Either way, it speaks volumes about the competency of the Russian trademark agency to consider an emoticon that’s already in such widespread common usage (and has been for decades) available for trademark protection.

Filed Under: emoticons, russia, trademark