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One of the world’s most iconic symbols, the smiley face, can be found on anything from jean buttons to acid tabs, but few know the history behind this logo, or that it is in fact trademarked.

The Smiley Company is now suing Etsy sellers who they claim are profiting off their smiles, which is a far cry from the company’s goal of ‘spreading positivity through smiles, to make the world a happier, kinder place’.

As one of the Etsy sellers being sued told VICE. “It’s a story about how The Smiley Company aggressively sued myself and over 700 online stores with one SAD lawsuit.”

In 1963 a freelance artist from Worcester called Harvey Ball got a commission from an insurance company looking for an uplifting design to boost employee morale. Ball draws a bright yellow circle with black oval eyes and a beaming smile. The artist however made the mistake of never trademarking the logo, so he never made a cent out of it, until in 1971, a French journalist Franklin Loufrani claimed to have invented the smiley face himself for the newspaper France-Soir.

Loufrani had a bit more foresight and trademarked the smiley face. The yellow logo entered popular culture and in the 90s, Loufrani’s son Nicholas founded The Smiley Company and secured trademarks for the “smiley” brand name in 100 countries around the world.

Today The Smiley Company counts Nutella, Clinique, Coca-Cola and Dunkin’ Donuts as some of their biggest clients and makes around $500m (R9.4 billion) in revenue per year. Smiles all around at the Smiley Company.

“When it comes to commercial use, registration is what counts,” Nicholas Loufrani told the New York Times in 2006: “I hit the casino jackpot.”

Smiles faded in 2023 however when Etsy sellers like Lilian Wendy-Bunting got hit with a lawsuit for their use of the trademarked logo.

“We were first alerted to something being wrong when our Etsy store was suddenly suspended one day in August,” she told VICE. “At the time, there were some stories in the press about Etsy withholding monies from sellers and freezing their accounts, so we thought it was something to do with that and would sort itself out.”

“After being suspended for about a week we received an email from Etsy legal explaining our account was ‘temporarily suspended’ due to a legal matter that involved us,” Wendy-Bunting says. “The email contained a Dropbox link, which contained a long list of confusing legal letters all issued by some lawyers acting on behalf of The Smiley Company issued in Florida, USA.”

“We learnt this was actually the name of this type of lawsuit: “A ‘Schedule A’ Defendants lawsuit, nicknamed a ‘SAD lawsuit’.”

Ironic considering the logo. In Wendy-Bunting’s case, the product that had caught The Smiley Company’s attention was an embroidered patch of a melting smiley face. “We designed and drew the motif from scratch and it was entirely our own,” she says. “It wasn’t even a smiling face like depicted in their trademark.”

It turned out the image wasn’t the issue, but rather the use of the word ‘smiley’ – One woman was sued over a grinning capybara pin, which was described as “smiley” in the listing.

@imchloecam #stitch with @Susi super HAPPY about my time this summer🤭😀😀 #storeboughtpesto #pesto #storytime #funnystorytime #comedy ♬ original sound – chlo

“Some people were quite understandably extremely distressed,” Wendy-Bunting says. Some people who got sued “didn’t even speak English as the lawsuit was only issued to non-US stores,” she adds.

“It lends itself in [The Smiley Company’s] favour that people can’t understand the legal documents provided and can’t seek legal representation so easily in another country.”