Emoji have become an undeniable part of our international language. They have allowed us to introduce our real-life feelings into the digital world. However, when introducing this cheeky twist to your marketing message, the question may arise if you can do so without stepping on any IP toes.

Limited copyrights

Copyright law protects original works, and this leads to the question ‘is an emoji original?’. The strength of many emojis is that they convey a strong message in a very simplistic way that speaks over language barriers. An international emotion is pressed into a small yellow circle. This undoubtedly limits the creative freedom of the designer and therefor basic emojis lack the level of creativity and originality to qualify for copyright protection.

However, more elaborate, and stylized emojis, such as those designed for specific platforms or applications, may meet the threshold for copyright protection. The scope of protection will however again be limited, there are only so many ways in which one can express its feelings in a miniature drawing.

No trademark protection

In 2023 The Second Board of Appeal (Case R 2305/2022-2) ruled on the registrability of the I love you-emoji . In short ‘they did not love it’. The Board of Appeal pointed out that emoji are perceived by the public as general advertising message or purely decorative, as such they are devoid of any distinctive character.

The decision raises the question towards the validity of all those smiles currently present in our trademark register. A party confronted with a registered winky face will most likely find a strong defence in an invalidity procedure. 

How to be on the safe side?

If you would like to avoid the discussion on originality, we see two solutions:

• - Find an open-source emoji-set and look into the license terms: is commercial use allowed?
• - Create your own original set of happy characters!

 Author’s opinion

As emojis now form an important part of our language, the use of such should be free if devoid of any distinctive character and protected solely if original or meeting trademark or design registrability criteria.

Creativity should be rewarded, but considering emojis we may consider a subtle balance that allows us to keep on expressing our feelings online without awakening the enraged face emoji.

By Hanne Lammens Senior Trademarks | Designs Attorney IP Hills | Ipsilon Group

Sources:

Goldman, E. (2018), Emojis and intellectual property law, WIPO Magazine 3/2018, www.wipo.int.

EUIPO Second Board of Appeal 1 June 2023, R 2305/2022-2, Käselow Holding GmbH v. EUIPO.