Although emoji and emoticons are ubiquitous today, back in the 1990s, what later became a "craze" started with just one simple heart — <3 — thanks to Japanese telecom company NTT DoCoMo. Users of DoCoMo's pagers could send a <3 at the end of messages, until the company put a stop to it for a now unknown reason. DoCoMo officially brought back a new version of the heart in 1999, along with 175 more icons, and voilà —emoji!
Emoticons are differentiated from emojis in that they are markings of facial emotions. In some instances, there has been a greater breath of protection for emoticons because emojis can often be found to be non-distinctive images of basic things or public domain symbols. There is a high threshold to find distinctiveness in either marking and depending upon where you attempt to register these symbols the outcome will vary. In the United States, the USPTO has been more flexible about finding an adequate level of distinctiveness, but in the EU the success rate of registration has been low.
The word "emoji" derives from the Japanese “e” (絵文字: 絵) which means picture, and “moji” (文字) which means character. Thanks to Fast Company's Co. Design for featuring a slew of interesting details about the design history of the original 176 emoji from a new book and accompanying keyboard app called 'Emoji,' published by Standards Manual in the fascinating article, "The Untold Design Story Of The Original Emoji."
These days you can find more than 2,500 varieties of emoji and emoticons— from the popular 👍 to the dancing woman, 💃,to 🦄🎂✈, to 15+ versions of a ❤️, and just about anything else you might think you need to express yourself.
Anyone can propose a new emoji or emoticon. The process of getting a new one reviewed and approved can be complex and lengthy, so much so that a nonprofit organization, called Emojination, has emerged to help people navigate the proposal system. Once the review process is completed, the "voters" who approve new emoji include nine U.S. technology companies, along with a German technology company, a Chinese telecom company, and the government of Oman, who pay for the right to cast a vote.
As a form of intellectual property, many creators of these graphics have attempted to register these design images under copyright and trademark. Check out our recent post on the recent trend of custom-designed fonts that Netflix, Samsung, and BBC have jumped in on. Likewise, digital device makers often create their own fonts and/or emoji; alternatively, they buy or license them. What's often billed as "free" emoji often have licensing requirements, so always read the fine print.
When it comes to the actual word "emoji," The Hollywood Reporter wrote in 2016 about Marco Husges, a German former video game executive and founder of The Emoji Co., who was the first to file commercial trademarks around the world for the word "emoji." Husges entered into a legal dispute with Sony Pictures Animation over its film, "The Emoji Movie," which was released in 2017. Sony's trademark applications connected with the film were rejected in 2016.
More recently, you may have run across emoticons and emoji being used in domains. Gizmodo points out that emoji and emoticons in URLs have some challenges: "Many browsers don’t support emoji, .com, .net, .org," while no gTLDS are allowed to delegate emoji domains.There are few registrars that will support the needed code to convert to the designs within the domains.
A 2017 report from ICANN’s Security and Stability Advisory Committee included two recommendations related to emoji and emoticons URLs: 1) that the ICANN Board reject any TLD (root zone label) that includes emoji, and 2) it "strongly discourages the registration of any domain name that includes emoji in any of its labels … also advises registrants of domain names with emoji that such domains may not function consistently or may not be universally accessible as expected." This hasn't stopped some registries from making emoji domain names used as HTML anchor text, as in i❤.ws. For example, a recent World Trademark Review article points to the availability of the "💩.fm" domain, along with "👽.fm" and "🐼.fm."
Ultimately, there is contention around the ability to protect these design elements as distinctive indictors of a single source for consumers or even having the needed modicum of original expression. It is, in most instances, easier to use these elements and acquire distinctiveness and/or goodwill amongst consumers. It is likely going to be a challenge that emojis and emoticons (unless highly intricate) will be able to be registered, protectable, and truly enforceable intellectual property.