In this modern day and age, using emojis and hashtags to communicate is a part of everyday life. So much so that emojis and hashtags are a consideration when it comes to intellectual property law and commercial law. They’ve even been considered in defamation law here in Australia!
Let’s take a look..
Contract Law and a Thumbs Up Emoji
In a story out of Canada, a thumbs up emoji led to a contract dispute.
A Canadian farmer was found to owe $82,000 for breach of contract after using a “thumbs-up” emoji in a text.
According to court documents from the King’s Bench for Saskatchewan in March 2021, grain purchasers with South West Terminal, Ltd., sent a text message to grain suppliers wanting to buy flax for $17 per bushel for delivery in October, November, or December of that year.
After phone calls with farmers Bob and Chris Achter, SWT drafted a contract for Chris Achter to sell SWT 86 metric tons of flax for $17 a bushel and deliver the flax in November.
The SWT rep signed the contract in ink and then sent a photo of the contract via mobile phone to Chris Achter along with the message “Please confirm flax contract.”
Achter responded with a “thumbs-up” emoji, according to the documents.
Achter never delivered the flax in November 2021, according to the documents. By November, the price of flax was $41 per bushel.
According to Achter in the court documents, he confirmed “the thumbs-up emoji simply confirmed that I received the Flax contract. It was not a confirmation that I agreed with the terms of the Flax Contract. The full terms and conditions of the Flax Contract were not sent to me, and I understood that the complete contract would follow by fax or email for me to review and sign. Mr. Mikleborough [sic] regularly texted me, and many of the messages were informal.”
To read more, click the article here.
In 2020, the District Court of NSW ruled that emojis can indeed be considered defamatory in the case of Burrows v Houda  NSWDC 485).
Proceedings were brought by Zali Burrows against Adam Houda in relation to posts made on Twitter in July 2019 and May 2020. One of Mr Houda’s tweets linked to a news article which reported a judge’s suggestion that Ms Burrows conduct be referred to the Law Society for potential disciplinary action. The tweet received a number of replies. One of the replies said; “July 2019 story. But what happened to her since?” Mr Houda responded with: 🤐 (the zipper-mouth face emoji).
Ms Burrows claimed that the words and images in Mr Houda’s tweets gave rise to defamatory imputations and her Honour Justice Gibson agreed, stating;
“As is sometimes the case with social media posts, the meanings may be gleaned from pictures as well as words, and where liability for publication arises from more than one post, from the dialogue which ensues.”
Justice Gibson referred to the online dictionary Emojipedia and said that the zipper-mouth emoji means “a secret” or “stop talking.”
Check out the full definition here from Emojipedia.
Given that emojis are used all the time to convey meanings or added to written communication, it’s likely this won’t be the last time we see emojis in court that are considered defamatory.
Emojis and Trade Marks
Have you ever wondered if emojis are trade marked? And if you can legally make and sell handmade products with emojis on them?
First of all, emojis are part of Unicode.
Unicode is an international encoding standard for use with different languages and scripts, by which each letter, digit, or symbol is assigned a unique numeric value that applies across different platforms and programs.
When you send an emoji to a friend on your phone, it will be the same emoji no matter what language your friend speaks.⠀
Emojis are similar to letters of the alphabet in that regard and you can’t trade mark an alphabet letter or an emoji. ⠀
However, emojis do fall under copyright laws and protection and there are several different types of emoji versions out there. For example; Apple, Twitter & Facebook all have their own versions. ⠀
To be able to use a specific type of emoji you’d need to obtain licensing from the copyright owner. You could also purchase a commercial use set or design your own. If you want to use someone’s licensed emojis on your handmade products you would need their permission and the correct license use.⠀
Check out the different versions of the “tears of joy” emojis below:
Can You Trade Mark a Hashtag?
Hashtags are an important feature on social media platforms. They can include slogans, taglines, social movements, brands and trade marks.
Hashtags are a recognisable symbol and have meaning to the general public.
In most cases, what follows the hashtag # symbol is what will be considered as your recognisable and registrable brand. However, as stated by IP Australia, if “what follows the # symbol is not going to be acceptable as a trade mark, the addition of the # symbol is not going to get it over the line.”
Consider whether the # symbol is an essential part of your trade mark application – if a hashtag itself has become trade mark material for a business, it could be considered trade mark material.
Be careful if your trade mark application with the # symbol is too similar to an existing trade mark without the # symbol. It will still be considered similar.
Eg. “BigBites” vs “#BigBites”
If the # symbol is followed by words that other businesses would need to use, it’s unlikely to be acceptable.
IP Australia has lots of helpful information on their website regarding IP and hashtags. Check it out here.
If you need help with any commercial law and dispute resolution matters (with or without the use of emojis and hashtags) contact our friendly team here.