The Battle of the Brands – Smiley Smile

This in the nature of a Phriday Phillipic since the regular Friday Fillip is in the hands of the other Simon …
But thanks to Laurel Murdoch for Smiley SmileNot that Smiley Smile litigation., a delicious bit of IP litigation, that made the NYT today.

Harvey Ball claims to have been the creator of the smiley face. The story goes that the merger of the State Mutual Life Assurance Company of Worcester, MA (now known as Allmerica Financial) with Guarantee Mutual Company of Ohio crushed employee morale.

So nobly, Harvey Ball, freelance artist, was asked to create a logo to be used on buttons, desk cards, and posters. In less than ten minutes the smiley face was complete, and the rest is history. State Mutual handed out 100 smiley pins to employees. The aim was to get employees to smile while using the phone.

For some bizarre reason (though this was the Sixties, after all) the buttons were popular, and by 1971 more than 50 million Smiley Face buttons had been soldThe obituaries were just as wild as the stories.. Some even wanted the thing on their car number-plates.

Alternative history Take 1: Frankin Loufrani, a Frenchman invented the logo and has had that recognized by the UK Patent Office. The mark is pending at the USPTO. Loufrani has made a very profitable business line from this product.

Alternative history Take 2: Seattle adman, David Stern, inspired by the song Put on a Happy Face from Bye Bye Birdie invented the mark.

Alternative history Take 3: the wretched logo was invented by a pair of brothers, Murray and Bernard Spain in Worcester, MA

Alternative history Take 4: well the movie lovers in Slaw know just who invented the thing…

Now according to the BBC, Walmart is asserting rights over the image, which it has used since the dawn of time…or at least 1996. It is facing strong opposition from the Frenchman – see Alternative History Take 1

This week, a spokesman for Wal-Mart remarked that the Frenchman’s company SmileyWorld appeared to be attempting to “”They are applying for rights over the smiley face in product categories that include animal semen,” John Simley, a Wal-Mart spokesman, said. “It shows they are trying to trademark everything they possibly can.”

Countering SmileyWorld’s claim, Wal-Mart is arguing that it has utilized this friendly symbol since at least 1996 in their stores and some of their print advertisements. In a rather pointed rebuttal to Wal-Mart’s efforts to maintain their hold on the US copyright to the smiley face, the Frenchman (Nicolas Loufrani), stated that if his company won their suit, they would not license use of the face to Wal-Mart. His final comment was “We want to aim our brand more upmarket.”

So watch this space, as the USPTO grapples over the summer with a piece of sixties history that continues profitable.

BTW, as for the Frowny face, that’s already taken.