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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by Anonymous Coward on Mar 24th, 2008 @ 6:32am
Walmart sucks.
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by Matt Bennett on Mar 24th, 2008 @ 7:06am
Wasn't some other guy, who came up with the smiley face in the 60's trying to enforce copyright on the smiley? Wouldn't he own it, and walmart would have to license it from HIM?
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Re: by DanC on Mar 24th, 2008 @ 8:00am
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.
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Re: Re: by SteveP on Mar 24th, 2008 @ 9:25am
Everyone knows it was Forrest Gump
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Walmart sucks! by Anonymous Coward on Mar 24th, 2008 @ 10:36am
Hey Wal-mart, trademark this -> :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :) :)
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by Overcast on Mar 24th, 2008 @ 10:42am
Streisand Effect...
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Re: by Anonymoose on Mar 24th, 2008 @ 10:51am
Streisand Effect? Are you serious? Google something before you go blindly assuming that every piece of news is the Streisand Effect...
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Re: Re: by Anonymous Coward on Mar 24th, 2008 @ 10:56am
Ha ha ha ha ha ..... I'm just gonna start posting "Streisand Effect" now too - it sure makes you sound smart hey???
I shop at Walmart. Why? They're fucking cheap and I don't give a crap about the mutants who work there!
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Wal-mart by Etch on Mar 24th, 2008 @ 11:24am
What about South Park and their Episode titled "The Wal-Mart" where the kids have to go destroy the heart of the wal-mart in order for it to implode upon itself! lol
They actually use the real name and likeness! If they can't sue South Park then they definitely can't sue a T-Shirt maker!
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Re: Re: by Matt Bennett on Mar 24th, 2008 @ 11:46am
I think it was Ball I was thinking of, I think he was trying to enforce an actual copyright, getting sales of t-shirts and whatnot banned.
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Re: Re: Re: by DanC on Mar 24th, 2008 @ 11:59am
Then you aren't thinking of Harvey Ball. He never tried to copyright or trademark the smiley face.
Must be someone else.
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Re: Smilly creator by Phil on Mar 24th, 2008 @ 1:10pm
It was some other guy, he died not long ago. But at the time he came up with it, he felt no need to patent it.
Too bad he didn't
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Re: Re: Smilly creator by DanC on Mar 24th, 2008 @ 1:31pm
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.
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HAPPY FACE by Marsha Hendershot on Apr 26th, 2008 @ 5:57pm
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....
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