• Interesting questions posed, Steve, as usual. A couple of things quickly spring to mind, the most obvious of which is, “Can a commonplace ‘thing’ be commandeered as a trademark?”
    For example, Coke, I think, has successfully trademarked their bottle shape because even if only some shards of it were available, it could still likely be identified as a Coke bottle. That’s different from a company trying to establish trademark claims for something like a traditional milk-bottle shape, as I understand it. (Side question: whereas a dairy probably can’t trademark the shape, could a clothing manufacturer? Or an alcoholic beverage company?)
    Seems to this cavalier observer of trademark niceties that common emoticons are equivalent to milk bottles in that they are “common currency.” (Note to the curious: “common currency” is a writer’s device, and not a legal term.)
    Now, distinctive expression of a particular emoticon is a different story because form, color, design, etc., all come into play with that. In that case, it wouldn’t be an emoticon any longer; it would be a mark. The Newbury Comics “kid’s face” mark is a case in point (sorry, don’t know how to embed links in LinkedIn comments).
    And, just for fun, using the “Coke bottle shard” analogy, would the shards of an emoticon (period, comma, semicolon, etc.) still be recognizable as the trademark? That’s probably stretching the point, but maybe not.
    To my mind, trying to trademark an emoticon is the same as the colleges who are trying to trademark a distinctive color for their athletic fields. Sure, you can try to do it, and the thinking goes something like, “Every time someone sees #-( they’re going to think of Uncle Halsie’s Hangover Cure.” But good luck with establishing that connection, and I hope Uncle Halsie has lots of spare cash to pay for all the trademark-protecting monitoring and infringement letters and notices.
    In closing, let me note that my response to such dumb-bunny trademark pretensions is *-p
    (*-p is a trademark of You Can’t Be Serious, But I’ll Bet You Are, Inc.)