intellectual-property trademark
Does this German company really control the use of the term &#39;emoji&#39;?
<p><em>Important disclaimer: this question is not about any particular set of emojis (designed by a company or whoever else). The pictures themselves are obviously intellectual property and belong to their creators. This question is about the <strong>word</strong> emoji and whether it can constitue a trademark or not.</em></p>

<p>The story behind this question is the following: I got lost on the Internet, and discovered that the French postal services <a href="https://boutique.laposte.fr/mon-timbre-en-ligne/emojis" rel="nofollow noreferrer">were selling emoji stamps.</a> Nothing too interesting here, except I noticed a detail which struck me: <strong>on the website, all the occurrences of the word 'emoji' were followed by a little ®</strong>, the registered trademark symbol. I never saw this symbol associated to the word emoji before. Digging further, I discovered that the emoji stamps were produced under licence from a German company called <a href="http://emoji%20company%20GmbH" rel="nofollow noreferrer">emoji company GmbH</a>. I don't only mean that <em>their pictures</em> were used for the stamps. I also mean that (apparently) <strong>they seem to claim that the concept and the trademark emoji belong to them.</strong> Their website mentions:</p>

<blockquote>
  <p>We are the emoji company, the owner of the official emoji® trademark. [...] emoji® is a registered trademark.</p>
</blockquote>

<p>They also claim to be <em>'the official emoji brand'</em> (what 'official' means here is up to you), to be the <em>'iconic'</em> emoji source, and to have discovered their potential back in 2013. They do not seem to claim they are their creators, though.</p>

<p>It seems very strange to me that 'emoji' can be registered as a trademark. First, it is a legit Japanese word (絵文字・えもじ) meaning pictogram. Second, it's a common word of everyday language in many parts of the world, many languages, and became so presumably before the emoji brand registered it. Third, this company is <em>not</em> behind the spectacular expansion of emojis as a mean of expression and their internationalization (Apple and other tech companies were behind it), nor are they their creators (a Japanese guy, if I'm correct).</p>

<p>I did more research and discovered that the emoji company <em>is in fact associated</em> to various trademark agreements which allow such big companies as Sony to use the word emoji (<a href="http://www.licensemag.com/license-global/emoji-sony-pictures-reach-trademark-agreement" rel="nofollow noreferrer">exemple: The Emoji Movie</a>), and various products featuring emojis (<a href="http://www.emoji.com/partner/" rel="nofollow noreferrer">food, accessories, etc.</a>). However, they seem to kinda mix (in a subtle way) their claim of 'emoji' being a trademark, and the IP for the icons they sell themselves.</p>

<p><strong>So, are we now in a world where using the word 'emoji' without authorization is illegal? Should we really give royalties to this company whenever this word or this concept is used? Is there a strong base for their claim, or could it be challenged? And could even Apple or Facebook end up having to pay this company to provide emojis on their platforms?</strong></p>

<p>We are in a world where a word could be a trademark, and where trademark rights can be sold. Trademark protection does not create absolute ownership of a word in all contexts, so if 洗熊 is conventionally known as an 絵文字 in Japanese, then that use is not protected. A trademark is in a particular domain, which which distinguish 💃 from Japanese kanji. Similarly, "Apple" is generally a generic (unprotected) term, but in the domain of computers, it is a registered trademark. In that world, you can't sell a computer or an emoji using the protected name without a license, but anybody can talk about their Apple or their emoji. A crucial legal question will be whether a companying selling a product is "holding themselves out" as offering "emoji brand", or just a thing generically known as "an emoji". The courts somewhere may indeed find that "emoji" is a generic term. What is not in question is the copyright status of the art that an emoji embodies. I think we would have to inspect the license to see exactly what the company claims that it is licensing.</p>
