The guy usually credited with creating the smiley face in 1963, Harvey Ball, didn't think to try to trade mark the thing until the 1970's, by which time it had become so widely used in the U.S. that it had become part of the public domain. Loufrani was able to trademark the symbol in other countries, though, and has been raking in the royalties ever since. One might say that Wal-Mart was unwise to adopt a symbol that was in the public domain, but there was an event in 1996 that changed the rules of the game. Phony Liberal(TM) President Bill Clinton signed into law the Federal Trademark Dilution Act, which greatly extended the powers of organizations possessing trademarks.
This whole situation with Wal-Mart trying to protect its virtually public domain symbol (they've already filed a lawsuit against one of their critics), and Loufrani trying to wrest it from them would be no more that a comical tempest in a pisspot were it not for the fact that, as a result of the 1996 law, trademarks have become yet another case, like copyrights, of government becoming an institution which, rather than looking after the rights of citizens, extends special rights and privileges to those pseudo-individuals the Corporations at the expense of the common culture.
While looking for more about the Wal-Mart/Loufrani contretemps, I came across The Mark of the Beast, an article published some years ago in the Boston Phoenix. It reveals (for just one example) that
"The otherwise leftish Village Voice defends itself zealously against alternative newspapers trying to use the name "Voice." Of three other Voices in the country, the Bloomington Voice (Indiana) has been sued, the Dayton Voice has been asked to desist, and the Tacoma Voice has changed its name, without litigation, to the Tacoma Reporter."Even a mere few decades ago, I doubt that any local newspaper would have had the presumption to do such a thing, in a world where there was apt to be a Times or Examiner or Chronicle in just about any city. It's proprietarianism run amok.
I have no complaint about the concept of trademarks in itself. When I buy a bottle of Sierra Nevada beer, I like to know that it was actually made by my local brewery in Chico, not by some distant corporation trying to steal custom from a small competitor, or some fly-by-night outfit out to make a quick buck by trading on someone else's good reputation. Also, if there's something wrong with a particular item I've bought, I like to know who to blame. For these purposes, trademarks once served the consumer as well as they served the trademark owners.
But the expansion of the rights of trademark owners has led to a situation that reminds me of the Medieval Church selling indulgences to sinners. The mark itself has too often become the product, and there seems no limit to the sins commerce can commit, even to raiding the language and the common culture, all with government protection. How did a company manage to trademark the word "yum"? After all, it's the word our elected representatives use when they are brown-nosing those corporate lobyists who would turn everything that exists into private property. Surely, at least that should be in the public domain?