But can emojis also serve as trademarks, a sign that is just as powerful as the golden arches are to McDonald’s, or the green mermaid symbol is to Starbucks?
A client of mine recently asked this question because they wanted to put a “🌸” and “🔥” emoji on their new line of candles (to display that their brands have a smokey flowerly feel to them).
They asked whether the emojis, standing by themselves, could qualify for trademark protection, or if something more was in fact needed?
To understand how emojis interact with trademark law, let’s start with a basic understanding of what trademarks are.
Just as the Golden Arches is the mark of McDonald’s trade and “Just Do It” is the mark of Nike’s trade, the emoji symbol must serve as the identifiable mark of a business’s trade in order to validly serve as a trademark.
So the question that arises is whether emojis can serve as trademarks.
In theory, yes.
Emojis, just like the Nike “swoosh” logo, are symbols, and symbols can serve as trademarks.
But the true question is . . . can they serve as source identifiers, the requisite characteristic of each and every trademark.
To that I say, it depends.
One of the first questions the USPTO is likely to ask is if the design is “ornamental” rather than a source indicator.
A mark is determined to be ornamental when it’s seen as a mere drawing or design on a product or services vs. the logo or symbol identifies with the business’s offerings.
This T-Shirt Design is Likely to Be Seen As Ornamental.
But fear not! Some trademark titans have successfully navigated the muddy waters of the USPTO, and they’ve successfully lived to tell the tale.
For example, Yomax, Inc., Florida Based Corporation successfully trademarked the “poop” emoji in association with baby wipes, diapers, toilet trainer sets, and t-shirts:
Faith without works is dead, I guess…
On the other hand, several other trademark applicants did not fare as well, including Javamoji for Coffeepods:
What’s the actual difference? While the USPTO is notoriously inconsistent with their assessments, Yomax, Inc. did a few things that Javamoji did not, including clearly providing evidence of the emoji serving as a source indicator rather than a design.
But if we’re being honest, the differences between both applications are minimal, and I’d gander a guess to say more subjective analysis was at play.
In the end, whether you can trademark an emoji really depends on a couple factors, including whether the those in the marketplace see your symbol as a true indicator of the goods and services you provide.
But, even if people are readily able to pick you out of a crowd, it’s still best to speak to an intellectual property attorney before filing an application, partly because copyright issues may also be at play when you attempt to trademark a symbol you did not actually create.
The world of trademarks is filled with complexities, and navigating it successfully requires a sound understanding of the key principles at play.
We at Firm for the Cultureare here to guide, support, and walk alongside you every step of the way.
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Have you ever considered using an emoji to represent your brand? What’s been your consumer’s reaction?
