Protect a smiley face with a patent?

“(…) This cheerful, yellow little guy who regularly punctuates the messages we send each other was invented by Harvey Ball in 1963. Unfortunately, this graphic designer and soldier did not get rich at all thanks to the success of his work . (…) 

  1.  In a recent article published on our website, I once again discovered a pearl (!) In terms of intellectual property.


This article istitled  How the inventor of the smiley face missed his fortune.

The author of this article explains in particular that:

For its good and loyal services, the firm paid the man to the tune of 45 dollars. Neither she nor the designer thought of patenting thework . This is the reason why the origin of the ultra-famous man is also disputed and claimed by several other artists.


An invention that will have marked history:)(emphasis added)

This article, which is only a few paragraphs long, is riddled with errors and imprecisions in terms of intellectual property.

  1. As   we can see from the start, there is obviously confusion between invention and work, work and graphic creation, and patent:  invented by HarveyBall; Graphic designer; His work, patent thework ,an invention that will have markedhistory  .

However, I repeat: a work is not patentable, but is only susceptible of protection byonline trademark reviews.

And we must not confuse patents and copyright! (justlike patents and designs should not be confused, as I recently indicated to you here)

Only the technical invention (understood as a technical solution to a technical problem) is eligible for patent protection.

  1.  Also - and this is an understatement - it is doubtful that a smiley (iethe graphic representation of a little man who smiles) constitutes a technical inventionbecausein what way would this graphic representation be a technical solution to a technical problem?

Therefore, the smiley:

  • is not an invention (contrary to what the article claims: An invention that will have marked history );
  • isnot patentable (contrary to what the article suggests: Neither she nor the designer thought of patenting the work ).

So even if the creator of the smiley had thought of patenting the smiley, the chances of being granted a patent for the smiley would have been - in my opinion - zero or almost zero (failing for the smiley to be a technical solution to a technical problem).

  1.  Doing some research on Google to prepare this little post, I came across another article on the smiley face, its origin and its creation.

This other article entitled Russian operator wants to patent smileys, in vain, available on ,creates another confusion: that between patents and trademarks.

The first paragraph of this article talks about the attempt of a Russian citizen to patent smileys:

While Microsoft has been patenting the smileys that the publisher has created for a longtime ,a Russian citizen by the name of OlegTeterin, also a company founder, believes that he too has the right to do the same. And ironically, hecertainly wants to file apatent ,but also allow users to use it forfree (emphasis added).

The third paragraph of the same article explains that this is not possible because smileys cannot benefit from the protection offered by trademarks:

ButRospatent, who is the authority on the matter in Russia, said that Oleg's idea was particularly absurd, even silly, and said that smileys cannot be registered as atrademark . Sono one can claim exclusive rights for theiruse (emphasis added).

It is, to say the least, strange to justify that a patent cannot be filed for smileys on the grounds that they are not eligible for trademark protection; even though patent law and trademark law are two distinct intellectual property rights:

  • the first protecting - as we saw above - inventions; and
  • thesecond protecting the distinctive signs (whose function is to indicate that a product or a service comes from such or such company).
  1.   Inconclusion :the confusion between patent law, copyright, design law and trademark lawhas- unfortunately! -thehard life

Jason Steve

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