The appeals court didn’t quote Swanagan’s inculpatory message in full. Here it is from the district court opinion:

On October 11, 2021, SWANAGAN sent a Facebook message to HUFF that reads, “pull up need sum [water emoji] plus i got yu on the one tip” and HUFF replied, “I’m not mobile atm dough boi otw to get me tho” followed by a message that reads, “I’m tryna make sum cash boo” to which SWANAGAN replied, “ite” followed by a message that reads, “i see yu gta make et money back huh” and HUFF responds, “Swear”.

DEA Task Force Officer James Budde wrote an affidavit to support a wiretap. The court summarizes:

Budde had interpreted the use of a water emoji in those messages to symbolize methamphetamine. Swanagan argued it represented sexual relations, offering internet dictionary definitions as support, and requested a hearing.

The appeals court says Swanagan’s arguments don’t overturn the search warrant issued based on the affidavit:

Swanagan did not make an adequate preliminary showing that Budde’s interpretation of the water emoji was intentionally or recklessly false, so the district court did not clearly err in finding the affidavit truthful. Swanagan asserts that he “provided dictionary support that a water emoji had a common meaning of sexual relations” and that “the government acknowledged that the water emoji could have other meanings” besides
methamphetamine. At most, Swanagan makes out the possibility that the water emoji in his Facebook messages could have an alternative meaning. That possible ambiguity is not the same as reckless or intentional falsity.

The affidavit itself even contains another instance of “water” in a context where the purported sexual connotation would not have made sense….Even if
Budde’s interpretation was mistaken, Swanagan provides no evidence that such a mistake was intentional or reckless. He offers no witness statements or evidence suggesting that Budde was aware of a sexual gloss to the symbol.

Thus, the court says that the “water” emoji was capable of meaning “methamphetamines,” so the search warrant was adequately supported. Swanagan was sentenced to 360 months in prison.

* * *

In case you’ve never referred to the “water” emoji, I believe the court was discussing the emoji typically called the “sweat droplets” emoji:

When I do emoji law trainings, I highlight a few lessons from this case:

• Due to the pleading burdens for challenging a search warrant, the law enforcement officer has sufficient expertise to take the position that the water emoji was slang for drugs. The appeals court says that Swanagan didn’t show that the officer knew of its sexual connotations, but that statement relies heavily on the pleading burdens. I believe the “sweat droplets” emoji’s use as slang for male ejaculate is well-known–and certainly would be known to every competent ATF officer. But given the difficulties overturning a search warrant, the court essentially treats the officer’s expertise about emoji meanings as conclusive.
• Prior to this case, I had no idea the sweat droplets emoji was also called the “water” emoji or that it could be slang for drugs. That’s not surprising: drug slang evolves rapidly and many emojis have developed slang meanings in the drug context, even meanings that wouldn’t necessarily be obvious based on the emoji’s design.
• Even if the water emoji isn’t widely understood to have a slang reference meaning methamphetamines, it is still proper to legally recognize the slang meaning among these communicating partners if they developed that idiosycratic meaning.

Case Citation: U.S. v. Reed, 2025 U.S. App. LEXIS 33561 (6th Cir. Dec. 23, 2025)

The post Appeals Court Accepts That the “Water” Emoji Can Be Slang for Methamphetamine–U.S. v. Reed appeared first on Technology & Marketing Law Blog.

The law enforcement investigator who testified described the emojis as “a smiley face emoji and a devil horn emoji.” More specifically, the printed Facebook message that was admitted into evidence shows a face-with-tears-of-joy emoji and a smiling-face-with-horns emoji at the end of the message.

Note that face with tears of joy [] has different meanings than a regular smiley [there are many variations; this is the grinning face: ]. Thus, the investigator’s testimony introduced avoidable ambiguity about the emojis that was potentially misleading to the jury. I believe the “devil horn” and “smiling face with horns” emojis are synonyms, but visually depicting the emojis would have been a better way to explain them. For example, my software renders the smiling face with horns as red [], but often the depiction is purple. The appeals court doesn’t address any possible problems with the investigator’s emoji testimony.

Delarosa’s motion in limine to exclude the Facebook message included a printout of that message as an exhibit. However, in that printout,

instead of being followed by two emojis, the message is followed by four closely-spaced rectangles. Neither the text of Delarosa’s in limine motion, nor anything said during the in limine hearing would have informed the trial court that the four rectangles represented two emojis.

Delarosa argued that the emojis shown at trial could have prompted the jury to infer that he had a “glib attitude towards gun violence.” However, the appeals court says that at the time of the motion in limine, the judge didn’t know about the emojis (they were just the unexplained rectangle symbols in the evidence presented to the judge), so the judge couldn’t have evaluated the inference that Delarosa now objects to. Thus, the appeals court resolves this issue on technical grounds, saying the trial court didn’t abuse its discretion in denying the motion in limine due to the garbled evidence Delarosa presented in the motion.

I understand why criminal defendants shouldn’t get a trial do-over if they make mistakes in earlier rounds, but I didn’t love that outcome here. Effectively, Delarosa was exposed to evidence at trial (the message with the emojis) that hadn’t been subject to a motion in limine. In this case, the rectangles should have been a red flag that the printouts weren’t right. One troubling possibility is that Delarosa’s lawyers should have spotted that the exhibit didn’t accurately reflect the evidence, but didn’t.

[Note 1: it’s possibly unfair for an outsider ex post to critique how the litigation team handled a specific item of evidence. I imagine Delarosa’s defense team was dealing with a huge volume of evidence, possibly on short turnarounds, and litigation teams make many reasoned choices that are opaque to outsiders.

Note 2: it’s possible/probable that the trial outcomes would have been the same with or without the Facebook message evidence.]

The broader practice point is clear: lawyers must undertake proper efforts to ensure that the emojis introduced as evidence in court display the correct versions of the emojis. That may be easier said than done, because accurate depictions may require seeing the emojis in both the sender’s and recipient’s contexts and recreating the historical technical environments to depict how the evidence looked at the relevant historical time.

This opinion turns on how the emojis appeared in evidence, but frustratingly the opinion didn’t display any of the evidence showing either the emojis or the rectangle replacements.

Case Citation: People v. Harmon, 2025 Cal. App. Unpub. LEXIS 7318 (Cal. App. Ct. Nov. 18, 2025)

The post Emoji Evidence Errors Don’t Undo a Murder Conviction–People v. Harmon appeared first on Technology & Marketing Law Blog.

Note: as usual for Canadian opinions, this is a long read–220 paragraphs, approximately 28k words.

The Majority Opinion

For the most part, the majority opinion endorses the lower court decision, repeatedly saying (in essence) that the lower court judge got it right (or least didn’t make any obvious errors). The lower court judge should feel good about his work. That judge was surely dealing with an emoji interpretation case for his first time, and operates in a community not known for being at the cutting edge of technology law. Nevertheless, the lower court judge wrote a strong and thoughtful opinion that held up on appeal. At the same time, the majority opinion also reflects the standards for appellate review in Canada, which provide some deference to the lower court ruling.

I especially liked the majority’s framing that emoji interpretation isn’t really a new skill for common law courts:

human communication is often subtle. Words, phrases, gestures and symbols may carry more than one meaning. All of this gives rise to the potential for ambiguity and uncertainty and, indeed, litigation. The law has long accommodated for this, and courts are often called upon to determine the legal import of a multitude of communication types between individuals. The fact that, in this case, one part of the communication comprised an emoji simply provides a modern twist to this otherwise rather unremarkable observation

In other words, we need to be careful about overassuming emoji exceptionalism. When I do emoji law trainings for judges, I remind them that emojis are just another form of non-textual communication, and all of the techniques the judges routinely use to interpret human communication are likely to work with emojis as well.

(The most significant emoji exceptionism is the cross-platform depiction diversity issue I discuss in my paper, but that hasn’t generated much activity in court).

The seller argued that he had used the thumbs-up emoji to acknowledge receipt of the buyer’s text, not to assent to it. The majority says that is theoretically possible:

The judge would have committed error had he approached his decision by suggesting that a thumbs up emoji invariably means “I agree” or always bears something akin to that meaning. But he did not do that…

It is irrelevant that a thumbs up emoji may be used in other contexts to communicate other messages or ideas. What matters is the use to which it was put by Mr. Achter in the eyes of an objective observer

Nevertheless, the majority says that the seller chose this particular emoji in this particular context:

ALC submits that, if Mr. Achter had simply intended to acknowledge receipt of a draft contract from Mr. Mickleborough, “it is hard to imagine what other emoji would have been more apt”. However, the premise of this submission is that Mr. Achter was limited to communicating by way of emojis. It was Mr. Achter who chose to use the thumbs up emoji, when in the past he had used words like “looks good”, “ok” and “yup” in a similar situation to form binding contracts.

As a result, the emoji functioned as a signature:

The thumbs up emoji expressed Mr. Achter’s agreement to the contract and the act of sending the emoji with the metadata identified, or authenticated, Mr. Achter as the person expressing that agreement with that intention…

There may be some validity to the proposition that, taken together, the thumbs up emoji with the metadata that accompanied Mr. Achter’s text message could not result in a signature if his text message had not been sent in response to one from Mr. Mickleborough or if there had not been a history of authenticated communications between the parties. However, I do not need to decide if these hypothetical changes to the fact pattern would affect the result of this case.

While Canadian law resembles US law about electronic signatures, the emoji-as-signature issue may have been an easier call in the US courts. I think that the E-Sign and UETA laws in the US make it entirely clear that the emoji usage in this context would satisfy their requirements as a signature.

It appears the seller argued that a signature needs to be a newly created artifact, like how a wet-signature (ink on paper) creates something that didn’t previously exist. The majority does not agree:

I can agree with ALC that Mr. Achter did not create the thumbs up emoji for the purposes of signing contracts. However, the same can be said about the letters that together make up a person’s name. In either case, what is controlling is the use to which the thumbs up emoji or those letters are put.

The majority summarizes its conclusion:

Mr. Achter’s use of the thumbs up emoji communicated his agreement to the terms of the contract proposed by Mr. Mickleborough with the expectation that ALC would be held to it. Because Mr. Achter sent that emoji in a text message from his personal cellphone, there was electronic data that he knew would identify him as the maker of the mark and communicate his agreement to the contract. His text message therefore signed the contract as surely as if he had printed the photograph that Mr. Mickleborough had sent to him and then written his name on that print copy and returned it to Mr. Mickleborough.

The Dissenting Opinion

The dissent’s opinion wasn’t easy to read. The judge used a lot of Latin and seemingly hid his takeaway point. He says he “would take judicial notice of the fact that a thumbs-up emoji can signify approval or agreement.” However, he doesn’t think the signature requirement was satisfied because, I believe, the emoji would have needed to be affixed to the contract draft, not communicated in a message separated from the contract text.

This makes me wonder how the dissenting judge would interpret a multi-email negotiation where there is no single email defining the parties’ terms. Would the judge take the position that a contract never formed because there was no “signature” to the contract when the emails collectively would have to constitute the “contract”?

The dissent seems especially odd in light of the parties’ course of dealing. This buyer and seller had previously come to contract terms when the buyer sent a form contract and the seller replied with a brief text (e.g., “OK”) functioning as the signature to that contract. If the parties decide that’s how they would like to communicate with each other, the court should respect that.

Implications

I think this opinion reinforces some lessons we took away from the lower court ruling:

• Emoji law sits on top of longstanding legal principles, many of which the courts can apply without any exceptionalism.
• Using emojis as a communicative tool can have major legal significance. People often misperceive emojis as some second-tier form of communication with no legal implications of their usage. This case showed that a single emoji has substantial consequences–in this case, $82k (CAN). As usual, we are responsible for the words–and emojis–we choose.
• Emojis need to be interpreted in context. Emojis derive meaning from the content preceding them in a conversation, as do all other forms of human communication. Further, in this case, the parties’ course of dealing informed the emoji’s meaning. If the seller and buyer had never dealt with each other, the court might not have been as confident that the thumbs-up was assent and not just acknowledgment. But in the context of a pattern of similar dealings, it was more obvious that the emoji was assent.
• The fact that emojis have multiple meanings isn’t unusual. Many aspects of human communication develop multiple meanings, including slang. And that fact alone doesn’t mean that emojis are fatally ambiguous. Courts are very good at interpreting potentially ambiguous communications, whether that’s words, emojis, or anything else.

Case Citation: Achter Land & Cattle Ltd. v South West Terminal Ltd., 2024 SKCA 115.

The post Thumbs-Up Emoji Formed Binding Sales Contract in Canada–Achter v. South West Terminal appeared first on Technology & Marketing Law Blog.

Farley: “10:30 good boy 11 bad boy”

Victim: “Me bad boy”

Farley: “11 tomorrow night bud”

Victim: “No” plus “three emojis, which the victim testified were ‘a pointer at — like closing their finger meaning small [I assume ] and an eggplant emoji []'”

[The court then includes more of the conversation in a footnote, but treats this part as irrelevant:]

Farley: “Please bud, u know why”

Victim: “N9” [meant to be “no”]

Victim: “Plz 11” [the opinion says this message came from the victim, but I wonder if it actually came from Farley?]

The victim testified that the eggplant emoji referred to a penis and that he was making a joke that Farley had a small penis. A detective testified “that because of his training and experience he knew that the eggplant emoji meant a penis” (I wonder what training covered this topic?), that the parties were talking about future sexual contact, and the victim was saying that he didn’t want the sexual contact. In closing arguments, the prosecutor said:

A fair reading of those texts, especially in the context of the relationship described by [the victim] and described by the defendant on the recording with [the detective][,] is that the defendant was implying that he wanted [the victim] to be a bad boy starting at around 11 o’clock at night when [the victim] went to bed in Corey Farley’s bed. That’s where [the victim] slept . . . . The implication is that he was going to do naughty things in bed with [the victim]. That’s what those emojis were about.

[The victim] was seemingly willing to be a bad boy, but couldn’t help commenting how small the defendant’s penis was using those emojis. Again, [the victim] couldn’t have known anything about this 29-year old man’s penis unless [the victim] had seen it. It is also too suspicious to ignore that reference to a penis being immediately connected to the talk about being a bad boy in the text, right.

On appeal, Farley protested that the prosecutor made a conclusion that wasn’t supported by the evidence (I assume this refers to how the prosecutor’s interpretation differed from the detective’s testimony…?). The court disagrees:

Although Farley is correct that the victim testified that the messages reflected a joke, exhibits containing the messages and emojis were admitted in evidence, the victim and detective both testified that the eggplant emoji meant a penis, and the detective also testified that he initially thought the messages indicated that Farley and the victim “were talking about a sexual exchange.” The prosecutor did not err in inferring from this testimony and from the exhibits that the messages had a sexual connotation, despite the testimony to the contrary that the messages did not mean this

The court upheld Farley’s conviction and sentence.

The opinion is confusing because the conversation, without additional context, could support multiple interpretations. It seems pretty obvious that the parties were discussing sexual contact, with or without the detective’s testimony or the prosecutor’s characterizations. It’s less obvious that the conversation indicates that the victim had actually seen Farley’s penis. Genitalia size jokes are a trope, even among younger children. It’s also unclear to me if the conversation indicates what the victim wanted to happen (especially the “plz 11” message), but consent is irrelevant when dealing with minors.

FWIW, I found 7 other references to the eggplant emoji in my caselaw dataset.

Case Citation: State v. Farley, 2024 ME 52 (Me. Sup. Ct. July 18, 2024)

The post Eggplant Emoji 🍆 Means What You Think It Means–State v. Farley appeared first on Technology & Marketing Law Blog.

2023 marked a significant milestone: my census now counts over 1,000 total U.S. cases referencing emojis and emoticons (the exact number is 1,017). Recall the caveat that I can only track cases I can find, so my census surely undercounts the actual number by a lot. And cases that reach the electronic databases are only a small fraction of the total judicial activity involving emojis and emoticons. View the 1,017 cases as a tip of the iceberg when it comes to courts and emojis.

I have posted my updated emoji and emoticon census here. Email me if you see any errors.

* * *

Some other emoji law highlights from 2023:

* A Canadian farmer discovers that a thumbs-up emoji can cost tens of thousands of dollars.

* Tweeting a moon face emoji could constitute stock fraud.

* Similarly, a court says “the ‘rocket ship’ emoji, ‘stock chart’ emoji, and ‘money bags’ emoji objectively mean one thing: a financial return on investment.”

* A judge incorporates the exploding head emoji into his opinion to express his disdain for a party’s arguments.

* The “I Love You” emoji isn’t registrable in European Trademark Office.

* A court says the “water” emoji is slang for meta-amphetamines.

* Prisons can’t categorically ban emojis in prisoner correspondence.

* Emojico loses a SAD Scheme case.

* I did a Q&A on emoji law.

* The Free Law Project now allows caselaw searches by Unicode emoji!!! They even call it the “Eric Goldman feature.” 

* United States v. Ballenger, 2023 U.S. Dist. LEXIS 122992 (D.D.C. July 18, 2023):

no credible evidence supports the argument that the three messages from which emojis were omitted were meant to be sarcastic. See, e.g., id. at 116 (Prosecutor: “How do you know th[e emojis] were supposed to indicate [‘we stormed the Capitol’] wasn’t a serious statement?” Ballenger: “Because I know it wasn’t a serious statement.”). Nor would any sarcastic messages make a dent in the myriad communications displaying Defendants’ intent to disrupt congressional proceedings that day. See, e.g., id. at 72, 167 (Ballenger: “[T]he time has come. It’s January 6!!!”); id. at 119, 168 (Price: “[W]e’re just taking over the Capitol.”).”

* “excessive use of emojis could potentially hinder persuasion efforts, as both the source & the message may be perceived as less credible & trustworthy” (my daughter was devastated to learn this).

The post 2023 Emoji Law Year-in-Review appeared first on Technology & Marketing Law Blog.

The judge really gets revved up talking about the lodestar comparison of the billable hours-based accumulations compared to the requested contingency fee. The judge implies that the plaintiffs’ lawyer inflated the billable hours:

On no less than five occasions, the assigned associate billed the client for sending a single text message. Each of these instances is charged at “0.17 hours” or ten minutes, which is, presumably, the smallest unit of measure in the firm’s recordkeeping system. Thus, each time the associate texted the client or opposing counsel, VKV added $51 to its bill. While it is possible that one could perseverate over a text for ten minutes, carefully wordsmithing the message, there is evidence here that undercuts such a proposition, as some of that text messaging was supplied to the Court.

When the associate wrote, for example, “okay, thanks. I’ll let you know,” or “confirmed at 35%,” it is difficult to imagine that such a composition consumed ten minutes. Even reading the client’s responses, which in one case consisted solely of an emoji indicating affirmation, cannot reasonably be seen as consuming much time. Given that both common experience as well as government studies suggest that a text can be sent or read in as little as a few seconds, charging a client ten minutes for each text sent would appear result [sic] in flagrant overcharging.

[Note 1: I’m open to any non-sex-related job where I can get paid $51 per text message. Then again, Bill Gates promised me $245 for a single forwarded email, and that was a quarter-century ago.]

[Note 2: “rounding up” is a well-known phenomenon among professionals who charge for their time by the hour. It’s one of the many inherent fictions in time-based billing. See, e.g., Patrick Schiltz’s classic article, where he told well-meaning new lawyers that eventually, due to billable hour time-padding, “you will be stealing from your clients almost every day, and you won’t even notice it.” The opinion doesn’t mention if the clients consented to a 10-minute minimum charge every time the lawyer touches the file, which clients are free to agree to…but judges can also reject that deal term when computing lodestar amounts.]

The judge already expressed strong condemnation by calling the plaintiff lawyers’ billable hour computations “flagrant overcharging,” but he didn’t stop there:

To be fair, lawyers routinely “distort reality” in their judicial filings. That’s literally what they are paid to do. But apparently these lawyers pushed their reality distortion too far for this judge.

* * *

This is a rare example of a judge using an emoji to express part of the opinion’s narrative, rather than referring to emojis contained in the litigants’ evidence. I hesitate to declare this the first time a U.S. judge has used an emoji to articulate their legal conclusion, but I can’t think of another example. The closest I can think of is when the 9th Circuit displayed the thumbs-up and heart emojis, instead of characterizing them textually, to refer to social media reactions. See Garnier v. O’Connor-Ratcliff. That was a pure word substitution. Here, the judge went further and actually integrated an emoji in his judicial “analysis.” That may have broken some new judicial ground.

While I enjoyed the emoji usage in this case, emojis aren’t always a great choice for judicial opinions. Emojis have slang meanings that judges won’t always know (such as the crown emoji having a special meaning in the sex trafficking community), plus those slang meanings can change over time in a way that may make this opinion inscrutable to future readers. That’s especially true with metaphor emojis (like an exploding head) because the associated metaphor’s meaning may evolve rapidly. Furthermore, a violence-based metaphor, like an exploding head, could be triggering to a small subset of readers who may have some first- or second-hand connection to the violence (Pulp Fiction came to mind for me [trigger-warning, literally], but head explosions are a trope especially in horror films). So judges should definitely use emojis advisedly.

* * *

For picking a powerful visual metaphor to express his disdain, I award the emoji to Judge Gary R. Brown. (I’m also that he’s a magician in addition to a judge).

Case Citation: DePietro v. Levitt LLP, 2023 U.S. Dist. LEXIS 231867 (E.D.N.Y. Dec. 14, 2023)

The post Judge Rejects a Motion With the “Exploding Head” Emoji–DePietro v. Levitt appeared first on Technology & Marketing Law Blog.

One defendant fought back. The merchant’s Amazon product listing:

I use a nearly identical example in my SAD Scheme paper: an Amazon listing description using the word “emoji” to describe a poop emoji displayed on a mug. I believe Emojico has sued hundreds or thousands of defendants because the word “emoji” appears in the product listing to describe an emoji displayed on the offered item.

I have no doubt that the screenshot above doesn’t constitute trademark infringement. (In my SAD Scheme paper, I characterize the poop emoji mug example as “not a serious trademark claim”). Indeed, in my opinion, asserting trademark infringement claims over dictionary uses of the term “emoji” is objectively unreasonable and should be sanctioned.

Instead, as with hundreds of other Emojico defendants, the judge in this case issued an ex parte restraining order against the merchant, prompting Amazon to freeze the merchant’s account and cash. The merchant fought back, Emojico didn’t dismiss the defendant voluntarily, and the judge actually issued a ruling on the merits–an incredibly rare confluence of circumstances in SAD Scheme cases.

I’m sure you’re surprised to learn that when the judge actually reviewed the matter on a fully informed basis, it didn’t see trademark infringement.

The court says that the merchant made a descriptive “fair use” of the “emoji” term, but the court didn’t actually say that “emoji” qualifies as a descriptive trademark, instead of an arbitrary mark, for stickers. Nevertheless, the court explains its concerns:

The notion that Winlyn has used the word “emoji” on its Amazon page to indicate the source of the goods, rather than to describe the stickers it is selling, is incredibly strained. Winlyn can quite easily show that it used “Emoji” to describe its Valentine’s Day stickers product because the stickers depict an assortment of love-themed and heart-shaped emojis. The word “Emoji” helpfully describes the stickers that Winlyn is selling. Despite Emoji Company’s apparent confidence in the strength of its brand, the reality is that consumers looking to buy emoji-themed stickers are likely to search for the word “emoji.” This is not because they seek any Emoji-Company-branded products (licensed or otherwise). Rather, it is simply because that is the best way to describe stickers using the iconic pictogram styles. Moreover, Winlyn’s use of the word “Emoji” is buried in the middle of its 26-word-long product name, among other words that would obviously be used as descriptors (e.g., “Round,” Heart Shaped,” “Foam Stickers,” “Self-Adhesive,” “Smile Face.”). Winlyn even includes its brand name at the beginning of the title, which, though not dispositive, certainly helps its case….Winlyn will most likely be able to show that its use of the mark was fair and in good faith, the final element of its fair use defense.

(Emojico would very much like to extract payments from every merchant listed on the Amazon search results for “emoji”).

The court should have embraced its first instinct that the merchant didn’t use “emoji” as a mark. The court could have cited two recent Supreme Court cases (Jack Daniels and Abitron) for the proposition that trademark law only applies when parties are using a trademark as a mark, i.e., to identify and distinguish the source of marketplace goods. The merchant in this case, as well as the poop emoji mug merchant, didn’t use the term “emoji” to identify the source of their products. Both merchants used the term (for its dictionary meaning) to describe the product attributes. As the court notes, there wasn’t another good way for this sticker merchant to inform consumers about the emojis displayed on the product without using the term “emoji.” Trademark law does not restrict that usage.

In discussing likelihood of consumer confusion, the court says: “If a defendant is not using the trademarked language as a source indicator (i.e., as a trademark), then that is a strong indicator that it will not confuse a reasonable consumer.” That’s true. However, if there’s no use as a mark, there’s no need to address consumer confusion at all. (Also, if the court already determined descriptive fair use, there was no need to consider consumer confusion either–see KP Permanent Makeup).

As you can see, the court doesn’t really understand trademark law–which means it had no chance of getting the ex parte TRO ruling right. This is the reality of the SAD Scheme cases. Without the defendants’ perspectives, courts will predictably make basic errors.

The court acknowledges as much:

The Court previously found that Emoji Company satisfied its burden, largely due to the absence of any adversarial presentation. But now, based on Winlyn’s motion, the Court finds that Emoji Company is not entitled to continuing preliminary injunctive relief against Winlyn.

This highlights the structural and irreparable problem with the SAD Scheme. When courts make important but erroneous decisions on an ex parte basis, it undermines the rule of law and causes chaos throughout the Internet.

Although the court recognizes that its ex parte TRO ruling was wrong, the court doesn’t excoriate Emojico for its bogus advocacy. Instead, the court orders the merchant to answer the complaint and proceed with the litigation. What??? Emojico cannot win this case, but the merchant must incur more time and expense to reach the now-obvious denouement. (I suspect Emojico will dismiss the defendant to save costs and reduce the risk of a fee-shift).

Worse, the court doesn’t question if it made the same mistake with respect to the dozens or hundreds of other defendants in this lawsuit who already settled or were subject to default judgments. In fact, many of those prior cases likely involved equally unmeritorious trademark claims, but the court didn’t acknowledge the need to rectify any errors it might have made. If the only consequence to Emojico of its wrongful advocacy is that it can’t proceed against one of the dozens or hundreds of defendants it sued in this case, Emojico isn’t likely to reform its behavior.

So you can see why I have mixed emotions about this ruling. Yay for the court vindicating the interests of one Emojico defendant. Boo that this ruling won’t curb further SAD Scheme abuses.

Case Citation: Emoji Co. v. Schedule A Defendants, No. 22-cv-2378 (N.D. Ill. Sept. 29, 2023)

The post In a SAD Scheme Case, Court Rejects Injunction Over “Emoji” Trademark appeared first on Technology & Marketing Law Blog.

* * *

1. Please tell me about your childhood and young adulthood. Did you play games (ie, Atari, Nintendo) that required you to “read” icons and simple graphics? What sparked your interest in emoji? What early traumas or triumphs led you to internet law?

I don’t think anything in my childhood predicted my love for emojis. I had a typical GenX childhood. I was a latchkey kid. I watched a lot of TV.

I fell in love with the Internet in 1991 when I got my first email account. Email overcame several communications challenges. I could communicate for free (an important consideration given how expensive telephone calls were), I could broadcast my content to new audiences I could never previously have reached, my messages could travel around the globe instantly (as opposed to the time lags of postal mail), and I could engage in asynchronous conversations with people regardless of their time zone and how busy our respective schedules were. I immediately became an email enthusiast, and I anticipated that email would be an essential part of future communications.

I’ve never been an early adopter of technology, including cellphones, so my passion for emojis came much later than most. Around 2016, I spotted a legal opinion that referenced emoticons–something I hadn’t noticed before. It prompted me to attempt to all of the emoji and emoticon cases I could find. I have been maintaining that case census ever since.

2. I read somewhere that way back in the 1990s you created a “smiley dictionary” for your law class. What led you to do that? Did you have any idea back then that emoticons would explode and become a kind of language unto themselves?

I taught my first Internet Law course (then called “Cyberspace Law”) in Spring 1996 at the University of San Francisco Law School. There weren’t any commercially published casebooks for the course at the time, so Internet Law instructors created their own readers. In Fall 1995, I assembled the materials for my own reader.

I considered what materials should go into the reader. Students certainly needed to read the Internet Law cases and statutes, but those were quite few in number at the time. I felt like the students also needed to understand the unique “culture” of “netizens,” and that included how people spoke online. I found a “smiley” glossary online that had all of the basics as well as many silly and rarely-used emoticons. I included it in the reader.

3. You mentioned somewhere (Reddit??) that you decided to find a new area of law that no one else had noticed yet and specialize in it, so that you could become its leading expert. Is that true? If so, could you elaborate. When did you decide that emoji law would be a thing? Was there a case that struck you as a turning point?

Internet Law scholars routinely analyze what’s unique, special, or different about new technological developments compared to existing technologies. In the Internet context, it’s called “Internet Exceptionalism.” Based on that intellectual background, I instinctively consider legal exceptionalism for every new technology I encounter.

When I first encountered emojis in court opinions, I wondered: what’s unique, special, or different about emojis compared to other ways we communicate with each other? My first major project on emoji law, my Emojis and the Law paper, explained how emojis are both exceptional and not. That is, emojis generally don’t need exceptionalist interventions, but there are some quirks with emojis (such as cross-platform depiction diversity) where the legal system needs to recognize emoji’s uniqueness.

4. It seems like emoji law fits well with your sartorial instincts and sense of humor. There aren’t many other lawyers who cosplay their area of expertise. Can you tell me more about what it’s like to be the “emoji guy” at every legal conference? More about your on-brand outfits and headgear?

I am not known for being fashionable, so it would be uproarious if anyone found my fashion choices laudable or inspiring.

From my perspective, it would be weird for an emoji law enthusiast to not acknowledge how much fun emojis are and how many people enjoy using them. I have embraced this ethos by getting an emoji Hawaiian shirt, an emoji tie (which I don’t wear with the emoji shirt–even I have limits), emoji shoes, and emoji socks (custom-knitted for me by my co-author Prof. Rebecca Tushnet). As ridiculous as I look wearing them, they actually signal to the audience that I am the expert because I am deeply invested in the topic.

I especially love wearing the emoji shirt when I do emoji law trainings for judges. Judges are used to people appearing before them wearing their most professional attire. When I show up with my emoji shirt, they instantly know that my talk is going to be different–and maybe even fun.

5. What is the most dangerous emoji to use, legally speaking? or something totally unexpected?

Every emoji can be associated with illegality. For example, one court concluded that the “water” emoji (really, the sweat droplets emoji) was slang for meta-amphetamines, which contributed to sending people to jail. Another example is the “crown” emoji, which pimps use in the sex trafficking community to declare themselves king. If you aren’t in these communities, you might not have any idea of the criminal meanings.

From my perspective, the most “dangerous” emojis have the highest likelihood of being misunderstood. In 2022, Adobe released a report saying that “(#1), (#2), (#3) are the most misunderstood emoji.” Use those emojis advisedly! Other emojis that are notoriously subject to misunderstandings are the astonished face and dizzy face emojis. Also, in 2016, some academics showed how the “Grinning Face with Smiling Eyes” meant “blissfully happy” in one iteration of Apple’s depictions and “ready to fight” in an earlier iteration. Those disparate meanings could lead to misunderstandings and even violence.

Finally, I note the “thumbs-up” emoji. In some cultures, it is offensive (it has the same meaning as the middle finger), and some courts have suggested it could be an affirmation of contractual consent when a party allegedly used the emoji simply to acknowledge the other side’s message.

6. I’m fascinated by the rise of emojis as a kind of universal language (with its own local dialects). Could you riff about that?

I feel like emojis are analogous to hand gestures, which develop regional slang. The thumbs-up is an affirmation in Western countries and an insult in others. The OK sign is another affirmation symbol in some countries that has derogatory meanings in other countries (and has become a possible hate sign in the US). The fact that emojis develop local slang meanings is not surprising.

7. What’s next for emoji law? Is there a big case coming up? Something else weird or unexpected? Will emojis factor into the 2024 election somehow?

Platforms keep proliferating new types of “-oji” symbols, such as animated and personalized emojis. We haven’t seen too many cases involving them yet, but courts are surely going to be baffled by them when they do.

Like all other areas of the law, emojis show up in political matters. For example, the “shushing” emoji got some attention recently when it showed up in some evidence supporting allegations that Trump (directly or through proxies) destroyed evidence. The emoji may support the inference that there was a deliberate effort to hide or cover up evidence destruction.

8. What’s next for you? Working on any big cases? Exploring a new facet of the law? Is there some particular emoji or lawsuit that is obsessing you right now?

As I have done for several years, I maintain my census of new US cases involving emojis and emoticons. I blog new interesting cases as they emerge. There are 200+ cases a year referencing emojis or emoticons, but only a small fraction of those actually analyze the meaning of the symbols. I give talks about emoji law regularly, including judicial trainings. Some day I hope to write a book about emoji law. Every year brings more opinions that will be great for the book.

The post Q&A About Emoji Law appeared first on Technology & Marketing Law Blog.

In particular, in response to a negative story about BBB, Cohen tweeted:

If you don’t recognize the emoji, it’s the “full moon face” emoji. The court says that in some online circles, it’s used as symbolism that a stock price is headed “to the moon.” The court says this tweet could be a material misrepresentation:

The moon-emoji tweet was plausibly misleading because it was perceived “as a rallying cry to buy Bed Bath’s stock,” even though Cohen had soured on Bed Bath. Compl. ¶¶ 148–49; accord Friel v. Dapper Labs, Inc., No. 21-cv-5837, 2023 WL 2162747, at *17 (S.D.N.Y. Feb. 22, 2023) (finding same for rocket ship emojis).

Cohen objects that emojis can never be actionable because they have no defined meaning. In his view, “there is no way to establish . . . the truth . . . of a tiny lunar cartoon.” And similarly, emojis are at the very least “ambiguous.” But those claims get him nowhere.

To understand why, zoom out. Emojis are symbols. Like symbols, language can be ambiguous. If you say, “The Nats are going to win the World Series this year,” and your friend replies, “Right,” she may be agreeing with you, but it could also be a sarcastic reply. Context and tone help elucidate meaning. Just because language can be ambiguous does not mean it is not actionable or capable of being correctly understood.

So too with symbols. People use symbols as “a primitive but effective way of communicating ideas.”  Sometimes, symbols are ambiguous. If you texted your friend to ask him to have dinner with you and he responded with the steak emoji, you might reasonably wonder if he wanted to go to a steak house or fire up the grill. But like language, a symbol’s meaning may be clarified by “the context in which [the] symbol is used.” So if you knew that friend had sworn off restaurants, then you could be more certain that he was up for a cookout.

So the Court declines Cohen’s blanket rule. Emojis may be actionable if they communicate an idea that would otherwise be actionable. A fraudster may not escape liability simply because he used an emoji. Just like with words, liability will turn on the emoji’s particular meaning in context.

There are far better examples of emoji’s semantic ambiguity than the judge’s “steak emoji” (technically the “cut of meat” emoji) example. Also, I wonder if the judge knows that the emoji can have sexual connotations. That slang usage puts another, and likely unwanted, spin on what the “friend” might be suggesting when he responded with the “steak” emoji.

Still, overall, the judge handles the semantic questions properly. Emojis are always capable of multiple meanings, as are most words and other communicative symbols, and they derive their specific meaning from their surrounding context. The capability of multiple meanings doesn’t render an emoji definitionless or fatally ambiguous. For more, see my Emojis and the Law paper.

The court then interprets what the full moon face emoji meant in this context:

Bratya has plausibly alleged that the moon tweet relayed that Cohen was telling his hundreds of thousands of followers that Bed Bath’s stock was going up and that they should buy or hold. In the meme stock “subculture,” moon emojis are associated with the phrase “to the moon,” which investors use to indicate “that a stock will rise.” So meme stock investors conceivably understood Cohen’s tweet to mean that Cohen was confident in Bed Bath and that he was encouraging them to act….

that meaning is actionable. For one, it is plausibly material. That is, there was a “substantial likelihood that a reasonable investor would consider it important.” Investors appear to have relied on it, driving Bed Bath’s stock price up in the following days…..

Nor is the tweet mere puffery. If Bratya had alleged only that the tweet expressed Cohen’s hope that the stock would rise, that would not be actionable. Likewise, if Bratya had alleged only that the tweet signaled Cohen’s excitement about Bed Bath, Bratya would have no claim. But Bratya has plausibly alleged that Cohen’s tweet was more, an expert insider’s direction to buy or hold

This opinion didn’t definitively resolve the meaning of the full moon face emoji. On the motion to dismiss, the judge simply accepted the plaintiffs’ allegations about its meaning as plausible. In further proceedings, Cohen may admit that the full moon face emoji has the meaning ascribed by the plaintiffs. At minimum, the plaintiffs will ask Cohen why he used the emoji and what he thought it meant; and they can cross-examine him on his explanation.

Depending on Cohen’s answers, the plaintiffs may need to introduce further written or oral evidence corroborating their asserted meaning. I don’t expect such evidence will be hard to obtain. It won’t require a linguistics or “emoji” expert, but the plaintiffs may want an expert in how the meme stock community uses the phrase “to the moon” and any associated emojis.

For now, take away the lesson that a single emoji could be a securities violation in some contexts. Pick your emojis carefully!

Case citation: In re Bed Bath & Beyond Corp. Securities Litigation, 2023 U.S. Dist. LEXIS 129613 (D.D.C. July 27, 2023)

The post A Single Emoji Could Constitute Securities Fraud–In re Bed Bath & Beyond appeared first on Technology & Marketing Law Blog.

The trademark examiner determined that the symbol means “I love you” 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):

[This image search raises some questions for me. First, the search query is “i love you sign emoji,” which is the Unicode title for the symbol. However, that’s not the only descriptor, and I’m not sure if it’s the most common. Others refer to the symbol as “ILY,” and Emojipedia refers to it as the “Love-You Gesture.” Second, there is only one example (the one circled with the highlighter–I guess the examiner lacked a Sharpie?) showing the left-handed sign, and that result is from a URL “similarpng.com” of unknown provenance to me.  With just one possibly sketchy result to support the examiner’s claim, I’m not sure how much probative value this screenshot should have.]

Based on this screenshot, the appellate board concludes that “the public can certainly perceive the sign that is the subject of these proceedings as the ‘I Love You’ Emoji.’…It is not decisive whether it is carried out using the right or left hand.”

[For more on the “I love you” emoji, including its overlap with the “sign of the horns,” 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 I’m 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 applicant’s “I love you” 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 don’t have an easy way to track trademark registration denials for emoji symbols, so I don’t know often we’re 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, I’m 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.

The post European IP Office Denies Trademark Registration for “I Love You” Emoji 🤟 appeared first on Technology & Marketing Law Blog.