Today I want to share another story about rights in design, this time involving the smiley face trademark. I have written before about the shirts we sold with printed transfers and our own designs. One design had a friendly message with a smiling face above it. Just a circle, two eyes and a smile that everyone recognised.
We did not even consider that someone might hold rights connected with that image. To me, it was almost like a letter or a punctuation mark. I listed the shirts on marketplaces and they sold slowly. Maybe a couple each week.
Then an email arrived from Etsy saying our listing had been removed following an intellectual property complaint. It included a registration number and contact details for the rights holder. I opened the listing and first thought the problem was the phrase or a particular word. I no longer remember the exact wording. It was something like asking people to smile if they liked the handsome man wearing the shirt.
I started looking into it and checked the number in the American database. That is how I learned about the rights associated with Smiley and the brand's history in France in the seventies. According to the company, its original logo was first registered as a trademark in 1971. At the time I called it a patent, although patents, trademarks and copyright are different things.
I was surprised that such a familiar symbol could be part of a protected brand. My experience does not mean that every smiling or sad face is forbidden everywhere, even outside commercial use. The specific image, country, products and way it is used matter. But drawing a version yourself, replacing the smile with a wink or adding details does not automatically settle the rights question either.
I had always tried to be careful with names, slogans and well known logos. Here, I simply did not think there was anything to check. After this experience I also paid more attention to words in product titles and tags, including Smiley. A trademark does not ban a word in every context, but a familiar word is not automatically free to use in any way.
I tried contacting the rights holder by email and phone, but received no reply. I wanted to explain that I had not intended to infringe anyone's rights and had not researched the issue carefully enough. I wanted to apologise, discuss a solution, ask for the complaint to be withdrawn and consider a financial settlement if needed. I could see that the emails were being opened, but we never had a conversation.
In the end, the complaint stayed on my account. It taught me how unexpected questions about design rights can be. We now try to check even familiar symbols that we once assumed anyone could use freely. Feeling that everyone knows a symbol is not enough to avoid problems on a marketplace.
