The term ‘emoji’ is derived from the Japanese language, and implies a tiny visual picture used through emails, on the Internet and on social media to convey an idea or an emotion. As technology develops fast and digital communication changes, emojis are an integral part of how people communicate. Not to mention that emojis now have their own dictionary, which describes the significance behind each picture. Apple introduced its emoji keyboard in 2011 and Android phones followed it. The advent of emoji on mobile phone computers and keypads made it easier for people to express themselves more through emoji when they had conversations about text, and thus the way it was communicated became very common. However, the appearance of emojis on each platform vary slightly. Since the intellectual property rights of the emoji are safeguarded.
Emoji are mainly categorised under 2 heads-Unicode and Proprietary. The Unicode Consortium lays down guidelines for keyboard characters and emoji. Unicode has allocated a unique number to approximately 2,000 emojis, a black and white type and a short summary. Emojis can be identified across devices using Unicode standards. Platforms also se emojis on their platforms only. They are called ‘proprietary emoji’ (popularly referred to as ‘stickers’). Even if owners of emojis have designs identical to emojis specified by Unicode, they will not share the numerical value defined by Unicode for emojis.
Different businesses are equipped with IP rights to keep their Emoji secure. When it comes to the defence of commonly used emojis, intellectual property rights are in a hot seat. Intellectual property rights are generally shared between: only when an actual creator or recognizable group of creators has a presumptive right to the creator(s), awarded a specific intangible right and applied both in civil and criminal law. However, there is a distinction between the various laws (like copyright, trademark, design) applicable to emoji protection and the requirements for these laws. Due to the abstract existence of emojis and specifications under such laws there is no sufficient protection for emojis under other laws in India such as patent and geographical indications.
EMOJI PROTECTION UNDER COPYRIGHT LAW
On the face of this, Emoji seem to be copyrighted. They are code-based graphic designs. Therefore, copyright legislation protects individual emoji. Copyright is accorded to the creator of the original creative expressions in most nations, including India. However, it is common to mention such barriers in the copyright register of an emoji. As most Emojis are a simple version of the Emoticon (which due to its text-based nature is not protected by intellectual property law), because the original expression to make up authorship is not considered sufficient. The copyright law protects expressions, not concepts.
However, Emoji fall into the grey area of the merger doctrine, where it’s impossible to distinguish the two elements. There is a small number of ways to establish their features, separated from the original concept. Emojis are variants of human language. These become a reference standard and almost a mandatory part of emoji development. E.g., ‘smiley faces’ many sites use the yellow colour. Since many platforms draw their work only from the Unicode designs produced, they are not part of the original design and can only assert authorship of such variant, typically irrelevant in nature. While Unicode is a non-profit company in itself, it grants its emojis free use.
However, proprietary emoji also have a remarkable amount of variation and creativity, in which case they can be protected from copyright. The exceptions in the doctrine of fair use also weaken the rights of each emoji, but an emoji collection would have a better chance of enforcing their copyright. They also prescribe their claims of distinctive and original to a certain house style.
Another situation incorporate utilizing known emoticons over items, later to be reserved. Assume, Apple makes a distinct emoji of a bird. It is a copyright of Apple. On the off chance that somebody currently needs to utilize that bird over their items they would need to take permit/consent from Apple to imitate the plan paying little heed to the way that such emoji would now exist on a gathering outside the see of copyright.
In 2019, Nirvana, an apparel brand sued Marc Jacobs, for encroaching their brand name, when the later utilized a comparable looking emoticon on their attire line. Marc Jacobs had supplanted the ‘x’ of the smiley face’s eyes with their initials M and J over each eye respectively. The court granted Nirvana protection expressing that it very well may be reached out to both copyright and brand name security because of its unmistakable creation.
Emoji Protection under Trademark Law
Trademark is any word, symbol, sentence or device that helps to make a difference between goods and devices. This broad concept of trademarks also contributes to the use of emoji. If an emoji is able to help differentiate one good or service from the other, security as a registered trade mark can be achieved very well. Today, however, emoji’s widespread use limits emoji trademark security. This is because no patent is available on words, sentences, symbols or pictures categorically generic. The Emoji risk of generic disease is constant. In contrast to copyright, the trademark offers restricted rights for each emoji.
Section 9(1)(a) of the Trade Mark Law, 1999 provides for the refusal of the registration of a mark if ‘it is devoid of any distinctive character’ could be a probable objection to the registration of emoticons in India. One might argue that, in fact, a common symbol is the ‘heart;’ indeed, the heart has been depicted as a <3 since time immemorial. In reality, the heart symbol in the past is used in company logos. The ‘I Love New York’ logo and the Gareth Bale (footballer) mark feature a common application of the heart symbol.
If it is permitted to use heart-trademarks (in particular heart-emoticon registers) it could open up litigation floodgates for businesses that are subject to ‘slightly changing heart’ logos, i.e., variations in heart representation or heart-implemented enterprises as part of their logo.
WeChat’s facepalm smiley emoji, entered a trade-mark conflict with a clothing brand which tried to find a brand for using emoji on its t-shirts. However, because of the copyright of the maker of the emoji, the clothing company could not register the emoji as the trademark.
Emoji Protection under Design Law
Emoji have different designs, such as WhatsApp’s distinct gold-yellow, circular or blob-shaped emoji. Emoji have different designs. Such diverse emoji cannot always be supported by other platforms. For instance, on platforms like WhatsApp or Telegram, the Skype emoji collection cannot be displayed. Section 2(d) of the Indian Designs Act, 2000 states that design means the design features of the lines and colours applied to an article by any means or industrial procedure, manual, mechanical or chemical, separate or combined, which, in the finished article, are appealing for and judged solely by an eye. By this, emoji may not be protected under designs in Indian Law.
In general, design legislation protects the aesthetic attribute of an item produced industrially or by means of industrial methods which does not work. Since the emojis involved in this are, however, a forum whose specific purpose is to facilitate communication, it will not be protected by it.
Emoji Protection under Patent Law
Apple has one of the earliest patents in the sector called “Portable Touch Screen, Process and Graphical User Interface” (US 8584031). Apple’s patent argues that the user interface makes communication quicker and more effective. A patent, called ‘word recognition and ideograph or in-app advertisement device,’ was awarded to Meemo, a licensing, marketing and distributor (US 9152979) From the above cases it is possible that companies would not receive patents of their own. Any applications based on emoje can, however, be patented subject to fulfillment of patentability requirements, i.e. applications that allow the efficient use. In addition, there are other similar examples which show that emoji itself is not patentable, but that the technology around it is certainly patentable.
The IP rights of a bunch of billions of dollars ensures that expressions are converted into capital assets. Copyright or trade-mark rights on emojis often promote unauthorized changes as various sites are obliged to do so to prevent liability for infringements on their part. However, IP securitisation is a necessary evil in the modern business world. Emojis should also be given IPR rights as an original creative work such that the benefits deriving from its use are not denied to rightful owners of such picturesque expressions.