Wal-Mart fights for 'smiley' ownership

The yellow smiley face may strike most people as an overused piece of e-mail shorthand, or a cute interjection in the scribbled notes passed between American teenagers, or a throwback to the era of bright happy colours in the 1970s. But to Wal-Mart, the world's largest and most controversial retailer, it represents big money and a legal battle it fully intends to win.

Wal-Mart has long since adapted the smiley face, in its familiar yellow-balloon incarnation, as its unofficial logo, plastering it on shopping bags, promotional posters and many retail items in an effort to make people feel good when visiting its often soulless, discount superstores with their endless aisles and vast suburban car parks.

Nobody has objected to that, but now Wal-Mart wants to claim the smiley as its own property. That wouldn't stop people from sticking the little yellow face in their e-mail messages, but it would prevent other retailers from incorporating the smiley in their promotional materials.

And that is raising the hackles of a Frenchman named Franklin Loufrani, who has been making a living from the commercial use of the smiley since the 1970s. His London-based company, SmileyWorld, collects royalties from the propagation of the original smiley and its many offshoots (the Santa Claus smiley, the kissing smiley, and so on) from 80 countries around the world.

America is not one of those countries. When Mr Loufrani applied for the US trademark in 1997, he was opposed by Wal-Mart which had just begun using the symbol extensively. They have been fighting about it ever since, culminating in what is expected to a final ruling from the US Patent and Trademark Office in the next few weeks.

It's a David-and-Goliath contest. Mr Loufrani runs a one-man operation, while Wal-Mart is a multibillion-dollar giant that has transformed the landscape of middle America and now has its sights set on expanding overseas.

Mr Loufrani claims he invented the smiley in the wake of the 1968 student riots in Paris in an attempt to put a positive spin on the tumultuous events shaking the Western world that year.

He's not the only one to make such a claim, however. Harvey Ball, a Massachusetts graphic artist, claimed a few years ago that he had come up with the smiley in 1963 as an upbeat symbol for disgruntled employees whose two insurance companies had merged. By the time he thought to copyright his work, it had already been reproduced tens of millions of times and so had passed into the public domain. He earned just $45 for the commission, and not a penny since.

It's almost impossible to test the truth of these competing claims. As the Los Angeles Times reported yesterday, smileys have since been incorporated into the car number plate tag of the state of Kentucky, and popped up on a commemorative postage stamp in a 1970s nostalgia series.

A bit like smileys themselves, the trademarking of common words has become endemic. Apple Computers wanted to claim ownership of the word "apple", and McDonald's has trademarked more than a hundred words and phrases such as "Have you had your break today?".

The privatisation of the English language has been under way for some time - the battle is merely moving to the sphere of symbols.