Trademark for the
"Frownie" Emoticon Announced :-(
FOR IMMEDIATE RELEASE
Contact: Media Relations
Email: media@despair.com
Web: www.despair.com
Fax: 214.826.1952
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ABOVE: Dr.
E.L.Kersten, Founder and COO of Despair, Inc.,
Announces Plans to Sue Millions for Trademark
Infringement.
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DALLAS, TX - January 2nd, 2001 - In a
move that has millions across the Internet community
frowning, Despair, Inc. today announced that the U.S.
Patent and Trademark Office (USPTO) had awarded
them a registered trademark for the 'frowny' emoticon
which serves as their logo.
At a press conference, Despair's COO,
Dr. E.L.Kersten, announced his intentions to sue
"anyone and everyone who uses the so-called 'frowny'
emoticon, or our trademarked logo, in their written
email correspondence. Ever."
Despair filed suit yesterday in a U.S.
District Court in Dallas, alleging trademark
infringement against over 7 million individual Internet
users. The company has requested separate injunctions
granted against each. It is believed to be the largest
single trademark dispute in history.
According to USPTO records, Despair
originally filed for the mark in June of 1998, and was
awarded a registered trademark for the 'frowny' emoticon
logo on May 2nd of this year. Since that time the
company has, through the use of the FBI's controversial
new "Carnivore" Internet wiretapping system,
surreptitiously monitored unencrypted Internet email and
compiled a list of over 7,000,000 individuals who have
used the ":-(" emoticon in email.
Compliance with the injunction will
require the defendants to provide to the court and
Despair, Inc. a report, in writing under oath, setting
forth in detail the manner and form in which the
defendant has complied with the injunction to destroy
any email in which they have used the offending mark.
Despair has also petitioned the court to require
defendants to submit a handwritten letter which repeats
the phrase ":-( is a registered trademark of
Despair, Inc." one-thousand times. A ruling on the
petition is expected within a week.
INTELLECTUAL PROPERTY SPECIALISTS
STUNNED
The decision to award Despair, Inc.
with a registered trademark for the :-( symbol left many
in the field of intellectual property law stunned.
Suzanna Larkow, I.P. specialist of
Larkow, Madley & Associates, said of the issuance,
"This is a defining moment in the history of
intellectual property law. To extend official
registration to an emoticon, one who's common usage
predated the existence of the trademark holder by
several years, defies common sense and establishes a
dangerous precedent."
Albert Firkus, co-editor of IP
Monthly, offered a less dire assessment of the grant,
"Whether the issuance is a dangerous one remains to
be seen. What is certain, however, is that it appears
that someone has finally bested patent
5443036 for most ridiculous intellectual property
filing in history."
Despair's controversial trademark
action is only the latest in an ongoing series of
high-profile intellectual property disputes.
Amazon.com courted enormous
controversy after being awarded patent protection for
their "1-Click" ordering system, which allowed
registered customers to place orders without having to
rekey their credit card information. Critics protested
that "1-Click" did not merit patent
protection. Most argued that it fails to meet the
necessary standard of being "unique, specific and
non-obvious" because it relies so heavily on the
commonly used (and unpatented) technology of "http
cookies".
Larkow saw striking parallels in the
actions of Amazon and Despair.
"They are legally equivalent,
unique only insofar as one is a patent and the other, a
trademark. HTTP cookies have been commonly used by
programmers since Netscape introduced them years ago,
yet Amazon has received a patent for one. Emoticons have
been in circulation even longer, yet Despair has
trademarked one. That Despair was inspired by Amazon's
move seems obvious, given that they even included a
reference to the date of Amazon's patent in their 2001
Calendar."
"AN INNOVATIVE STAND"
For his part, E.L. Kersten
acknowledged being inspired by Amazon's legal
manueverings and had nothing but praise for founder Jeff
Bezos at the press conference.
"Once again, Jeff has proven to
be a true innovator. He's really inspired a new movement
in the dotcom universe- frivolous, destructive
intellectual property lawsuits. I couldn't be happier to
be a part of the revolution."
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ABOVE: Kersten
and one-time
enemy Kim Polese treat Jeff and Mackenzie
Bezos to dinner to honor Amazon's
"innovative stand against innovation". |
Kersten informed reporters he had
personally taken Jeff Bezos and his wife to dinner, to
congratulate him on his willingness to "take a
innovative stand against innovation", and also to
inform him that Bezos was amongst the 7,000,000 who had
violated Despair's trademark.
According to Kersten, Bezos burst into
his "terrifying" trademark guffaw before
letting fly a litany of obscenities and storming out of
the restaurant.
Kersten then intoned gravely,
"Let our message to trademark violators be clear.
Whether you are a 4th grade nothing using your momma's
AOL account, or you are Time Magazine's "Man of the
Year", we are going to hunt you down, and when we
do, we're really going to give you something to :-(®
about."
KERSTEN CONSIDERS NAME CHANGE
Kersten concluded the already baffling
conference with yet another surprise announcement. He is
seriously consideration to changing his name from Edward
Lawrence Kersten to simply ":-(".
"The idea of having a name which
so succinctly symbolizes unhappiness has enormous appeal
to me."
Kersten said he had made no firm
decisions yet but warned reporters not to plan to call
him "the C.O.O. formerly known as Kersten" if
he decided upon the change.
As the conference abruptly ended,
Carla Pitt, manager of Despair's Customer Disservice™
Department, was overheard to remark, "Would this
finally mean we can finally call him "Colon"
to his face?"
UPDATE: Facing
International Outrage, Despair Offers Compromise,
Apology on :-( Ban
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Articles and items appearing in
our "Recent Spin" are satirical and are not
intended to be an accurate portrayal of the persons,
companies or events depicted within them.
© 2001 Despair, Inc., All Rights
Reserved. • Disclaimers
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