European IP Office Denies Trademark Registration for âI Love Youâ Emoji đ€
The EU IPO denied a trademark registration for the following symbol in various real estate-related classes:
The trademark examiner determined that the symbol means âI love youâ in American Sign Language (ASL). The applicant argued that it was a different symbol because this one is a left-handed symbol, while the ASL symbol is right-handed. The examiner responded that other depictions of this emoji symbol are left-handed too (citing a Google image search):
Based on this screenshot, the appellate board concludes that âthe public can certainly perceive the sign that is the subject of these proceedings as the âI Love Youâ Emoji.ââŠIt is not decisive whether it is carried out using the right or left hand.â
[For more on the âI love youâ emoji, including its overlap with the âsign of the horns,â see the Dictionary.com entry.]
The board then explains some general concerns about registering emojis (note: this translation came from the EU IPO website, but Iâm not sure if it was automatically generated):
the main function of an emojis is to provide emotional references which are otherwise lacking in tilted entertainment. Emojis therefore function as a parallel language, which convey a nuanced meaning and make it easier to express feelings. They are often connected with positive communication. As a rule, they are not perceived as an indication of origin.
That last sentence was unclear to me. Was the board saying that consumers could NEVER perceive emoji symbols as indicators of origin, or that there was a rebuttable presumption to that effect?
The board seems to suggest the former:
the average consumer is accustomed to a large number of pictograms such as emblems and emojis which represent emotions and are generally used in private communication to express generally positive feelings, such as joy, consent, enthusiasm or happiness. Such pictograms (including emojis) are perceived by the relevant public as a general advertising message or purely decorative elements that are devoid of any distinctive character. The pictograms are often also devoid of distinctive character because they are simple geometric shapes, design elements customary in advertising, stylised instructions on the use of the product or the reproduction of the product itself
Accordingly, the board concludes that consumers do not perceive the applicantâs âI love youâ symbol as source-identifying:
the consumer therefore merely infers from the sign claimed a positive connotation of a general nature, either in the sense of an attractive decoration, in the sense of a general laudatory statement and incitement to purchase. As a simple representation of a positive gesture, the sign does not contain anything that would enable the targeted consumer to assign the goods thus identified commercially.
I donât have an easy way to track trademark registration denials for emoji symbols, so I donât know often weâre seeing similar outcomes across the globe.
This is a favorable result for emoji law because it reduces the risk that emojis will be used for trademark trolling. However, Iâm not sure if the same result would occur in the U.S. The symbol would be unregistrable for its generic meaning (i.e., I love you), but if it were used in unrelated fields like real estate, it might be an arbitrary mark that would be immediately registrable. Indeed, many emoji-like symbols have been registered as trademarks in the US.
For an overview of the emojis/IP interface, see this article.