So it turns out that a company in Europe owns the iconic smiley face that we see even here to your right of this text panel, in UBB code: : )
With DC Comics presently rattling the cages of readers through use of the Comedian’s blood-stained badge and other Watchmen-esque indicia (a flash of blue light in teleportation) within DC’s superhero continuity, legakl rights around the use of the Comedian’s badge seem to have come up again. See this article:
It is plain odd that DC Comics didn’t think about this when giving the nod to Moore to use the icon. The trade mark has been registered for a long time in many markets.
Does anyone know if DC ever received a cease and desist letter from The Smiley Company?
I have to say the fact that someone can own such a ever-present, or rather, generic symbol is plain odd. I did a quick trade mark search in New Zealand using the free IPONZ search engine and it seems that The Smiley Company tried to obtain a registration in NZ, but failed.
It wasn’t trademarked in the US, so DC had no issue with it until now. (DC probably has trademarked it now, but only in the US)
It wasn’t unusual for this to happen. In the past. General Electric, for instance, couldn’t use their exact name in the UK because there used to be a different General Electric company there (since folded).
You also had trademark trolls that would trademark a US item in multiple countries before the US company did it outside the US.
Wasn’t the smiley face badge a product of the late 60’s, early 70’s, around the time of keep on truckin’ and Robert Crumb?
Isn’t that what ‘prior art’ is supposed to mean? Certainly Watchmen predates that copyright attempt.
And the watchman badge is not just the smiley face, it’s the bloodstain on various points on it (I believe it was as a clock hand on the original twelve Watchmen comics, moving towards midnight)
As Chuck pointed out, the trademark isn’t registered in the USA. From the linked article, it absolutely does appear that trademark is enforceable outside the USA, since the they had examples of alternate comic book covers DC did use in the countries where that trademark is in effect.
And it’s a trademark, not a copyright, so they don’t have to change anything inside the comic.
The clock was completely different - it was a clock on the back cover that started at 11 minutes to midnight, and moved 1 minute per issue to midnight as blood dripped down the back cover. The blood (aka “human bean juice”) on the Comedians button never changed.
The modern smiley face was created by Harvey Ball in 1963 for internal use by an insurance company — Smiley - Wikipedia
Prior art is a concept relevant to patent law, not trademark law.
This is a trademark issue, not a copyright issue.
Existing words and symbols can become distinctive indicators of the source or origin or goods or services (that is, trademarks).
DC Comics experienced this issue before. It had a character called the Terminator, but the Terminator as a character appearing in stories is not a trademark use. When the Terminator movies came out, the movie producers made sure to establish trademark use, and so DC Comics lost their chance to use the Terminator name as a brand name for comic books and related stuff.
DC could have kept the character’s name, but they wanted the option of making it a brand, so they changed the name of the character to Deathstroke the Terminator, usually referred to as Deathstroke these days.
I think by prior art, Smid might have meant generic usage.
I can see why this is an issue. DC wouldn’t want The Smiley Company to have EU Customs seize copies of the comics on the basis that they are unauthorised counterfeits.
Perhaps this is why Batman and the Flash are depicted as having their thumbs over the mouth on the badge? Can’t see the mouth, its not a smiley face.
: )