High stakes in the battle over smileys

LOS ANGELES - The smiley face may strike most people as an overused piece of email shorthand, or a cute interjection in the mash notes scribbled by American teenagers, or else some kind of throwback to the 1970s era of bright happy colours and Mr Men books.

But to Wal-Mart, the world's largest and most controversial retailer, it represents big money and a legal battle it fully intends to fight and win.

Wal-Mart has long since adapted the smiley face, in its familiar yellow-balloon incarnation, as its unofficial logo, plastering it on shopping bags, promotional posters and many retail items in an effort to make people feel good and visiting its often soulless, discount superstores with their endless aisles and vast suburban car parks.

Nobody has objected to that of course, but now Wal-Mart wants to claim the smiley as its own trademarked property.

That wouldn't stop people from sticking the little yellow emoticon in their email messages, but it would prevent other retail chains or commercial vendors from incorporating the smiley in their own promotional materials.

That, in turn, is raising the hackles of a Frenchman called Franklin Loufrani, who has been making a living from the commercial use of the smiley since the 1970s.

He has a company based in London, SmileyWorld Ltd, which collects royalties from the propagation of both the original smiley and its many offshoots (the Santa Claus smiley, the kissing smiley, and so on) from 80 countries around the world.

The United States, for the moment, is not one of those countries, for the simple reason that when Mr Loufrani applied for the US trademark back in 1997, he found himself opposed by Wal-Mart, which had just begun using the symbol extensively in its burgeoning retail empire.

The two sides have been fighting about it ever since, culminating in what is expected to a final ruling from the US Patent and Trademark Office sometime in the next few weeks.

It's truly a David-and-Goliath match-up: Mr Loufrani runs what is essentially a one-man operation, while Wal-Mart is a multi-billion dollar corporation that has already transformed the landscape of Middle America and now has its sights set on expanding overseas.

Mr Loufrani claims he invented the smiley in the wake of the 1968 student riots in Paris in an attempt to put a positive spin on the tumultuous events shaking much of the Western world that year.

He's not the only one to make such a claim, however.

A Massachusetts graphic artist called Harvey Ball claimed a few years ago that he had come up with the smiley in 1963 as an upbeat symbol for disgruntled employees whose two insurance companies had merged.

Mr Ball's story is that by the time he thought to copyright his work, it had already been reproduced tens of millions of times and could only be regarded as having passed into the public domain.

He earned just $45 for the original commission, and not a penny more.

It's almost impossible to test the veracity of any of these competing claims.

As the Los Angeles Times reported yesterday, smileys have since been incorporated into the car number plate tag of the state of Kentucky, and a few years ago popped up on a commemorative postage stamp as part of a 1970s nostalgia series.

A bit like smileys themselves, the trademarking of common symbols or words has become something of an epidemic.

Apple Computers notoriously wanted to claim ownership of the world "apple", much to the displeasure of the Apple Music Corporation, which controls the Beatles' financial assets.

McDonald's, the fast food giant, has taken out trademarks on well over 100 words and phrases such as "Hey, it could happen!" and "Have you had your break today?" and "Changing the face of the world".

The privatisation of the English language has already been underway for sometime - the battle is merely moving to the sphere of symbols and emotions.

- INDEPENDENT