Registration of Marks Containing Emoji

摘要

As emoji are increasingly used in electronic communication, it is only a matter of time before applications are submitted to register trade marks containing them. However, it is not clear whether such marks should be considered word marks or figurative marks. The assessment of the absolute and relative grounds for refusal under arts 7 and 8 respectively are more complex for emoji marks than they first appear. Current EUIPO guidelines appear to require that such emoji marks be assessed as figurative marks. But this requirement fails to appreciate the subtleties and complexities of how emoji are used and perceived by the relevant public. The choice has an impact on the assessment of the registrability of marks, especially on relative grounds.