What if you have to pay for using :-), ;-), ;) or :) ??!

Surprised, shocked or just finding it funny? Trust me, my reaction to this was no different. Recently, I read that a Russian businessman, Oleg Teterin (he runs mobile ad company called Superfone) has indeed succeeded in obtaining Trade Mark registrations from the Russia's Federal Patent agency for a range of sequences using colon, semi-colon, hyphen and closed parenthesis. Not just that, Oleg claims, now that he has obtained TM registrations for ;-), :-).;) and :), any usage of colons,semi-colons, hyphens in any manner, to express emotions could also amount to an infringement of his registration.

Oleg proposes to be nice to millions of individual users and make only the companies using emoticons to pay for their usage. It is also reported that he proposes to charge a fee close to $10k from these corporate users towards an annual license.

Well, its questionable whether Oleg will succeed in extending his registrations to the rest of world, but the internet users and lawyers dealing with the IPRs are obviously not too pleased with the manner in which the Russian Federal Patent agency has dealt with this TM application. The Agency is drawing flak from the entire geek community for what seems to be an absurd grant of TM registration.

This trade mark registration of emoticons is questionable on the following grounds;

• The trade mark laws across the world define trade mark to mean any sign capable of graphical representation which is capable of being represented graphically which is capable of distinguishing goods or services of one undertaking from those of other undertakings. In this case Oleg does not use these emoticons to distinguish his goods/services from that of others. Even if he does, it is questionable as to what extent they serve the purpose and consequently meet the essential requirements of a TM. Therefore, this TM registrations should not have been granted in the first instance. It is pertinent to note that Despair Inc (of USA) in 2000 itself was successful in obtaining a registration for :-( from the US PTO. But the distinction here is that Despair Inc was using the TM to identify its services unlike Oleg.
• Further, the emoticons have been in usage from 19th century; one Scott Fahlman, of Carnegie Mellon , claims that he was the first to use three keystrokes _ a colon followed by a hyphen and a parenthesis _ as a horizontal "smiley face" in a computer message.
  

Interestingly, in 2001 Despair Inc, it filed a law suit in a U.S. District Court in Dallas, alleging trademark infringement against over 7 million individual Internet users. The company also requested for separate injunctions against each of them. It was believed to be the largest single trademark dispute in history. These 7 million individual internet users were listed by monitoring their usage of :-( over a period. However, the public outrage against this worldwide made Despair Inc to withdraw this law suit and post an apology on their website.

For now, there appears no immediate threat for the users of emoticons unless the EU and US TM authorities encourage any such moves to register the emoticons in future.

Service Tax on movie theaters

It appears that Notification No. 109/2009 dated 23/02/09 proposes to clarify the confusion on Service Tax on movie theatres. The following appears to be the clarified position on the Service Tax liability of the movie theatres;

A] Theater owner screens the movie for fixed number of days and gets a fixed amount contracted. The revenue of tickets goes to distributor; in such cases ST is not applicable.

B] Distributor takes theater on rent and theater owner gets rent; in such cases ST is applicable under ‘Renting of immovable property’.

The industry may now work towards reducing the incidence of cost to enable exhibitors to reduce the cost of tickets to lure the already dwindling number of multiplex visitors.