For over three decades, Franklin Loufrania, a French native, has raked in millions of dollars in licensing fees on smileys, now through his London-based company, SmileyWorld, when he began securing trademarks for the happy face in over 80 countries around the world. With the smiley already reproduced at least 50 million times in the U.S. by the early 1970’s, however, making it then part of the public domain, Loufrania’s trademark strategy could not penetrate the United States. Meanwhile, over the last 10 years, Wal-Mart has invested billions of dollars prominently displaying the iconic yellow happy face in its advertising, linking the Wal-Mart name to the yellow circle with two dotty eyes and a loopy grin. It wasn’t until 1997 that Loufrania applied to control the symbol in the U.S. Now Wal-Mart and Loufrania are fighting it out in front of the U.S. Patent and Trademark Office.
If Wal-Mart’s claim, that it has exclusive rights to the familiar image, at least among retail department stores in the U.S., prevails, it could keep its competitors from embellishing the symbol on plastic bags, badges, balloons, T-shirts, hats and just about anything sold in stores, or ads used to promote them. SmileyWorld’s objective, on the other hand, is to be able to sell their products in the U.S. market without any confusion with Wal-Mart.
With both sides expected to wrap up their bitter legal battle over smiley in front of the USPTO before the end of this summer, the ruling will likely leave only one side smiling.