Wal-Mart Faces Smiley Trademark Dispute

Harvey Ball would not be happy about this news. Wal-Mart is embroiled in a legal dispute over the smiley face image, which it wants to trademark in the US.

Until now the smiley face had been considered in the public domain in the US, and therefore free for anyone to use.

Wal-Mart spokesman John Simley told the Los Angeles Times that it had not moved to register the trademark until Mr Loufrani had threatened to do so.

"It is kind of ironic that this whole dispute is about a smiley face," said Mr Simley.

"But in the end, it is what it is: it's a mark that we have a tremendous investment in and is very closely identified with our company."

Truth is -- Wal-Mart is invested in co-opting this public domain icon as a trademark of its brand. And, if anything is ironic, it's that the Wal-Mart spokesman's name is Simley. :-)

The ubiquitous smiley is a familiar face to everyone, but the story of its invention by Harvey Ball is not so well-known.

The invention of the Smiley came about in 1963. The State Mutual Life Assurance Company of Worcester, MA (now known as Allmerica Financial) purchased Guarantee Mutual Company of Ohio. The merger resulted in low employee morale. In an attempt to solve this, Harvey Ball was employed in 1963 as a freelance artist to create a smiley face to be used on buttons, desk cards, and posters. In less than ten minutes the smiley face was complete. The use of the smiley face was part of the company's friendship campaign whereby State Mutual handed out 100 smiley pins to employees. The aim was to get employees to smile while using the phone and doing other tasks. The buttons were highly popular, with orders in lots of 10,000. More than 50 million Smiley Face buttons were sold by 1971, and the smiley has been described as an international icon.

Ball never applied for a trademark or copyright of the smiley and earned just $45 for his work. State Mutual, similarly, did not make any money from the design. Ball's son, Charles Ball is reported to have said his father never regretted not registering the copyright. The Telegram and Gazette of Worcester reported Charles Ball as saying "he was not a money-driven guy, he used to say, 'Hey, I can only eat one steak at a time, drive one car at a time'".

The associated "Have a Nice Day" tag line was not part of the original design. Brothers Bernard and Murray Spain later trademarked the line and the smiley face design in the early 1970s. The Spain brothers and later marketers earned millions of dollars from Harvey’s initial icon.

The World Smile Corporation was founded by Harvey Ball. The corporation licenses Smileys and organizes World Smile Day. World Smile Day raises money for the Harvey Ball World Smile Foundation, a non-profit charitable trust which supports children's causes. World Smile Day is held on the first Friday of October each year and is a day dedicated to "good cheer and good works". The catch phrase for the day is "Do an act of kindness - help one person smile".

Harvey Ball died on April 12, 2001 as a result of liver failure following a short illness. He was 79 years old.

He must be rolling in his grave.