Really? You Can NOT Use this Smiley Face Freely?
This smiling face appears frequently in our daily life, covering nearly all categories of products, from jewelry, clothes and toys to furniture and car accessories. It is so common that people regard this element as being used freely.
Actually, the history of this happy face is longer than you can imagine. Then follow me to view a real case about the infringement of the smiley face.
Really? You Can NOT Use this Smiley Face Freely?
This smiling face appears frequently in our daily life, covering nearly all categories of products, from jewelry, clothes and toys to furniture and car accessories. It is so common that people regard this element as being used freely.
Actually, the history of this happy face is longer than you can imagine. Then follow me to view a real case about the infringement of the smiley face.
The Cause of this Story
Our client Thomas, a seller on Amazon, told us that his product listings were removed from Amazon suddenly, while his products were just regular slippers. After searching, we realized that it was because of copyright infringement, and the object of infringement turned out to be the smiley face you can see everywhere.
How Thomas solved it
After being judged as copyright infringement and not allowed to sell the slippers on Amazon, Thomas hired a lawyer to help him reinstate the product listing and also sent an application to the right owner Smiley Company for using the smiling face.
However, Smiley replied to Thomas that he was not allowed to sell this product and they didn’t want to hear any agreement from a not authorized seller. In other words, because he didn’t apply in advance and used without permission, the right owner didn’t want to authorize him.
Finally, he had to remove the product from Amazon and deal with the remaining stock through other channels.
Who is Smiley Company?
In 1972, French journalist Franklin Loufrani registered the smiley mark for commercial purposes and used the smiley face to highlight good news on France Soir. Later he registered the mark in more than 100 countries and founded the Smiley Company.
With the development over 50 years, the Smiley Company has developed a series of smiley emojis and a side-line range of products. Except for the first smile face, it has registered worldwide copyright of its other icons and characters, owning the right to use more than 3,000 emotion icons.
More than 800 companies have access to these icons, including Apple, Google and Microsoft. The annual income of the Smiley Company is over $130 million.
Who is Smiley Company?
In 1972, French journalist Franklin Loufrani registered the smiley mark for commercial purposes and used the smiley face to highlight good news on France Soir. Later he registered the mark in more than 100 countries and founded the Smiley Company.
With the development over 50 years, the Smiley Company has developed a series of smiley emojis and a side-line range of products. Except for the first smile face, it has registered worldwide copyright of its other icons and characters, owning the right to use more than 3,000 emotion icons.
Moreover, you should also pay attention to the validity period of the copyright. Usually, the copyright is valid within 50 years. Even if the author died right after publication, his works are still protected by the copyright for 50 years. The figures shown below are all registered copyright by the company, and even a simple line is still protected by copyright.
Who Complained Our Client?
You would find there are still many other similar products with the same icon sold on Amazon, but these products are not authorized either.
Did Smiley complain about Thomas’s product? It seems not possible. If so, many sellers without authorization have to remove their products as well. Moreover, the copyright owner cannot discover every case of using its products without authorization.
So except for the Smiley Company itself complaining, there may be the platform Amazon, your competitors. Let’s analyze it in the following part:
Amazon is cracking down on copyright infringement
Generally, not artificial inspectors, but Amazon’s robots detect infringement behavior on typical icons, while it’s random to judge objects of infringement.
In this case, although some sellers are not authorized, they can still sell infringing products normally on Amazon. But nobody cannot make sure whose product will be judged as the next object for infringement.
Malicious Complaint from Your Peers
Many Amazon sellers grumble to us that it’s difficult to protect their hot products. Once others find your products sell well, they will either copy the product to sell or complain maliciously about infringement of patent, trademark or copyright. So reporting the competitors selling the same products occurs frequently on Amazon.
But for the Amazon official, it’s hard to obtain evidence and determine the infringing behavior. In this case, once someone reports or complains about infringing cases, Amazon would probably block or remove product listings.
How to Deal with Copyright Infringement?
If your products are removed due to copyright infringement, here are three situations of complaining about infringement on your products.
- By the copyright owner
If the copyright owners find your product infringing on their copyright, they would ask for compensation or file a lawsuit against you and your product would be likely to be destroyed, especially when you’re a big business. For instance, if Apple uses Smiley’s icons without authorization, it would be involved in a lawsuit.
As small businesses, if the sale of your product is just a little or the total product value is not high, the complaint won’t cause a great loss. What if your product sells well, about tens of thousands of daily sales, but suddenly prohibited for sale, huge losses would be unavoidable.
You can try to negotiate proactively for authorization and also offer a certain compensation to strive for cooperation when the owner complains about you for infringement. The authorized party can be brand owners, patentees, or copyright holders.
Although our client failed to get permission from Smiley, it does not mean all the copyright owners would reject your application. Many copyright owners, not as big as Smiley, are glad to authorize you to use it. Therefore, regardless of success or failure, you must try to apply for authorization first.
- By the sales platform
Different sales platforms have different regulations for infringing, among which Amazon, as the largest e-commerce platform, has very clear and strict regulations on infringement.
For copyright infringement, especially typical icons, it would be removed once found. In this case, the platform would ask you to provide relevant files of brand or copyright authorization so that you can continue to update products for sale.
In regard to copyright authorization, you should contact the copyright owner in advance, and it will be most likely to succeed if you do so. The reason why our client Thomas was rebuffed is that he used the icon before applying authorization. In fact, copyright and brand owners hate bitterly others who use their works without permission.
Another situation is if you’re complained about due to random robot inspection on the platform, while you own the copyright by yourself or you’ve been authorized by the owner. You can appeal to the platform at first; if the case is complicated, then you can find lawyers for solutions.
Or if in the USA Amazon, DMCA (DMCA Counter-Notice) is a usual method. If your product is not involved in infringement or owns a legal right to use, you can submit the notice to explain.
After Amazon receives the notice, it would tell the complainant to withdraw or file a lawsuit. If the complainant takes no action, Amazon will unlock the product listing after 10 workdays.
- By your competitors
There are no effective means to this situation and it is hard to prevent it. But what you should pay attention to are the following:
- Don't select quite competitive products
Many new sellers are inclined to sell products at low costs but with good profits, so they always choose hot products and can’t avoid competing toughly with others.
- Don't copy product listings from peers
Many sellers don’t know how to write product listing, including title, keywords, features, description, bullet points and pictures, so they copy from others directly (as pictures showing below). Understandably, you can learn from others what they have done well, but a complete copy is never practicable.
Don’t select quite competitive products
Many new sellers are inclined to sell products at low costs but with good profits, so they always choose hot products and can’t avoid competing toughly with others.
Don’t copy product listings from peers
Many sellers don’t know how to write product listing, including title, keywords, features, description, bullet points and pictures, so they copy from others directly (as pictures showing below). Understandably, you can learn from others what they have done well, but a complete copy is never practicable.
Our Suggestions & Experience
- For new products
If you want to develop or customize a product to run a long-term business, please ensure the elements in your product infringe copyright or not. In regard to products with complex technical protocols, we highly recommend you consult a relevant patent attorney to deal with.
- For existing brand products
If you purchase existing branded products, like Nike and Adidas, you should also get authorization from brand distributors. Do not and never sell replicas.
- For products with hot IP
You have to pay more attention to products attached with famous IP icons, like Ultraman, Marvel and Disney. You must get authorization for sales because these products are strictly controlled.
Take Disney products as an example. You need to get FAMA (Facility And Merchandise Authorization) in advance to declare customs if you want to import them. Without authorization, the customs will distrain the goods; even worse, you have to be punished.
Anyway, don’t take any chances, but prepare for authorization of trademark, patent and copyright in advance to avoid infringing. Nobody wants their businesses to be stopped halfway, as it’s really a nightmare.
