Can I trademark an emoticon?
Yes, you can trademark an emoticon provided that you use that emoticon as a brand for your products or services. For example, the emoticon “:-)” is a registered trademark for a clothing line.
To trademark an emoticon, you must demonstrate that you began using it with your products before any of your competitors, and that it plays an intrinsic part of your product branding. Please note that trademarking an emoticon will not prevent that emoticon from being used, nor will it entitle you to royalties for its use. Trademarks only serve to maintain the brand integrity of products and services within a particular market.
We strongly recommend that you have a trademark attorney perform a trademark database search if you are considering applying to trademark an emoticon. A surprising number of emoticons have already been trademarked, and common law protects an even larger number. It can be exceptionally difficult to determine if an emoticon is available for use, because common law trademarks are not listed on the United States Patent and Trademark Office’s website.
Contact us today if you would like to use an emoticon to brand your goods or services. Our associates will perform in-depth searches to determine the availability of your desired emoticon.
The Trademarking Process
About the Author
Xavier Morales, Esq.
Mr. Morales founded his trademark law practice in January 2007 with the goal of providing intellectual property expertise to entrepreneurs and businesses around the country. Since then, he has filed more than 6,000 trademarks with the USPTO. You can learn more about Xavier here.