In a battle that’s sure to crack a smile on your face, Wal-Mart, the world’s largest retailer, is looking to control the rights to the famous yellow smiley face, at least when it comes to the marketplace.
The icon has been prominently featured in Wal-Mart stores across the globe in recent years, as the chain looks to put shoppers in a good mood as they hunt for bargain prices.
The only problem for the company is that it did not invent the smiley face. In fact, the true designer is in dispute, though there are several claims to the throne.
Among the contenders – and chief opponent of Wal-Mart’s ambition – is Franklin Loufrani, a Frenchman who makes his living collecting royalties from the spread of the original smiley and its offshoots from 80 countries around the world.
He claims he invented the happy yellow face after the 1968 student riots in Paris, as he tried to put a positive spin on the tumultuous events that year.
When Loufrani applied for a U.S. trademark in 1997, he was confronted by Wal-Mart, which had just started featuring the face in its locations.
“For those of us who just live in the world, maybe it looks silly, but for those who are reaping a financial benefit, I think it’s very important,” Steven Baron, Loufrani’s Chicago-based attorney, told the Los Angeles Times.
Loufrani isn’t the only one who has claimed creation of the colorful grin.
The late Harvey Ball, a graphic artist from Massachusetts said he was the one that designed the smiley in 1963 to ease tensions amid the merger of two insurance companies.
While the original concept was just for the smile, Ball told the Telegram & Gazette of Worcester, Mass., in 1997 that he added the eyes so a disgruntled employee couldn’t flip the face upside-down and thus create a frown.
But he waited before trying to copyright it, and the symbol had already permeated popular culture, being copied some 50 million times and became part of the public domain. He made a not-so-happy $45 for his work, and nothing since.
Wal-Mart, meanwhile, has a serious look on its face about the smiley, as it has invested billions of dollars over the years.
“It is kind of ironic that this whole dispute is about a smiley face,” Wal-Mart spokesman John Simley (ironically, an anagram of smiley) told the Times. “But in the end, it is what it is: It’s a mark that we have a tremendous investment in and is very closely identified with our company.”
The battle is expected to culminate at the U.S. Patent and Trademark Office in the next few weeks.
Legal experts say even though it sounds humorous, trademarking a ubiquitous symbol is not necessarily frowned upon.
But according to UCLA professor Neil Netanel, an expert in copyright and trademark law, Wal-Mart may have a tough time proving that most people associate the yellow grin with the retailer, since they are seen in millions of e-mails and instant messages on the Internet, having nothing to do with the sales leader.
“It seems to me that when people walk around with a shirt with a smiley face on it, it’s because they like the smiley face, it’s not because they associate it with a company,” Netanel told the Times. “The value of it isn’t in the goodwill of the company; it’s that people like the illustration.”
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