Emojis and Legal Disputes

I must admit, I am an emoji neophyte.  Anything past the smiling, laughing, or thumbs up emoji baffles me.  I honestly have no idea what some of the emojis mean.  Now, it appears that emojis are causing quite a stir in the legal world.  Recently, emojis have become the source of contention in all kinds of lawsuits (ranging from business disputes to harassment to defamation).  For example, the meaning of an emoticon--apparently, this is slightly different than an emoticon.  Who knew?  ¯\_(ツ)_/¯  

For example, in a defamation lawsuit, the issue is what the emoticon, ":p" means.  It represents a face with its tongue sticking out. That case involves a comment on a message board that accused an official of corruption.  The poster inserted the emoticon at issue after his/her accusation.  According to the Appellate Court, the insertion of the emoticon negated the defamation claim because the emoticon denotes a joke or sarcasm.  Thus, according to the court, the defamatory comment cannot be taken seriously because it was a joke or a sarcastic statement.

In another case, a sexual harassment case, the question is the significance of a red-lipstick kiss mark emoji used by an employee to an employer in response to sexually explicit texts. Was this an acquiescence to the advances of the employer or just a polite reply in an attempt to distance herself from the employer?  According to the attorneys in the case, the testimony of the employee about what she meant to convey may not resolve the issue. 

These are only a couple examples as to how emojis and emoticons can confound us attorneys and judges. According to Eric Goldman, a Santa Clara University School of Law professor, emojis or emoticons "appeared" in 33 state and federal cases.  This number is undoubtedly going to keep increasing as people continue to increase their use of technology to communicate and the creators of such technology keep creating more and new emojis.   

U.S. Army's "War" With the Las Vegas Knights

I must admit, I am a fairly casual hockey fan.  However, the Las Vegas Golden Knights caught my attention when they catapulted to the top of their division (they currently hold a ten point lead over the second place team) as an extension franchise.  For those of you who are unaware, the Las Vegas team is in its first year ever.  The general rule is that new franchises usually do not perform at a high level--they usually are the team that every other team in the league beats quite easily.  New franchises usually flounder for the first couple/few years of their existence.  But, not the Las Vegas Golden Knights.  They hold the best home record in the league, are among the top six teams in goals, and are successful when going into overtime. 

For reference, the Minnesota Wild only won 25 games in their first season.  It took the Wild three seasons to make the playoffs.  The Columbus Blue Jackets only won 28 games in their inaugural season.  It took the Blue Jackets nine seasons to make the playoffs.  Currently, the Las Vegas Nights have won 39 games this season.  They are tops of the Western Conference and look to be a shoo-in for making the playoffs. 

Yet, they have found themselves embroiled in a fight with the United States Army.  The Army opposes the Knights' trademark application to register "Vegas Golden Knights." Apparently, the "Golden Knights" is a nickname used by the Army since the 1960s for its parachute team, its public relations, and recruiting.  In addition, the Army claims that it has common law trademark rights in the black/gold and yellow/white color schemes which are the colors of the Las Vegas Knights.  As I understand it, both sides were aggressively fighting the other.  At stake for the Las Vegas Golden Knights would be that they would have to change their name and, potentially, their color scheme.  Given the amount of time, effort, and resources expended by the team to build their brand, that would be a huge set back. That is probably why the hockey team filed a settlement motion with the Trademark Trial and Appeal Board yesterday.  The settlement motion seeks to work out a deal where both sides can continue to use their respective marks. 

Even if the Army and the Las Vegas Golden Knights can reach an agreement, the College of Saint Rose in Albany, New York is lurking.  Their nickname is the "Golden Knights."  The College filed a request for an extension to oppose the hockey team's trademark application which means that they may decide to deny the hockey team the right to the mark--as did the Army.