The use of emoticons can cause considerable costs

Eric Goldman, professor of law at the University of Santa Clara in California, studies emoji and their impact on the legal world for many years. His first studies were aimed at the possibility of obtaining an exclusivity on the faces commonly used to express a feeling or to strengthen an affirmation or a state of mind.

Emojis can be protected in the abstract by copyright law, they can be registered as a trademark or as a design. However, they are simple images and represent a concept that has standardized ways of expression, so it is difficult for them to have sufficient creative character. On the other hand, for registration as a trade mark or as a design they have to be used in commercial activity, and their use to express a concept can only be considered descriptive. Although they can be protected, their form of protection requires careful consideration on a case-by-case basis and is not so obvious.

Emojis can be of two different types: unicode-defined or proprietary. The first are those that comply with the standards provided by the Unicode Consortium which assigns a unique code, a stylized form and a description to each emoji so it can be recognized by the different platforms that display it. The proprietary ones belong instead to the specific platform that uses them and are not available on other applications. In fact, even standardized emojis are not visible in the same way in the various platforms and this can create problems of interpretation, so much so that according to a survey most users would not have used certain icons if they had seen how they were displayed by the recipients. Here’s an example from an article by Goldman in which on the left is the Unicode symbol and, on the right, the different stylizations used by the platforms:

Pay attention to the interpretation of emojis, not only because you can be misunderstood, but also because they can have serious legal consequences. Like a written text, they express a feeling but also a will and can constitute real evidence. In a recent study, Goldman examined the judicial proceedings from 2004 to the present, in which the emojis had a certain impact. In particular, he examined a case in Israel in which the judge sentenced a party to pay damages for not acting in good faith during the pre-contractual negotiations. The message in the court room in Goldman’s study is:

The Judge deduced from the emphasis of the icons that the owner was right to believe that the contract was  concluded, in fact he had removed the rental offer from the ads. From the context it was not possible to deduce the completion of the agreement, but it was certainly possible to deduce a serious and concrete interest in stipulating the lease of which the details had to be defined. the Court reached this conclusion by examining the symbols in the message, in particular the bottle of sparkling wine and the sign of victory. If writing is a fundamental act, using symbols is even more important because the meaning given to them by the sender can be different from the one perceived by the receiver who, moreover, can view the emoji in a different way. It is also important to remember that to this possible interpretation can also be added that of a Judge who can be a substantial part of his judgment in the event of a dispute.