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The USPTO eventually sided with Walmart and rejected The Smiley Company's application, due to widespread use of smiley face designs.Seeking to prevent Walmart from using any smiley face design, Nicolas Loufrani next sued Walmart in federal court in 2009, while claiming that his smiley face was "readily distinguishable" from Walmart's.In Western countries, emoticons are usually written at a right angle to the direction of the text.

The text of his original proposal, posted to the Carnegie Mellon University computer science general board on 19 September 1982 (), was thought to have been lost, but was recovered 20 years later by Jeff Baird from old backup tapes.

In a New York Times interview in April 1969, Alden Whitman asked writer Vladimir Nabokov: "How do you rank yourself among writers (living) and of the immediate past?

" Nabokov answered: "I often think there should exist a special typographical sign for a smile – some sort of concave mark, a supine round bracket, which I would now like to trace in reply to your question." Later, in 1996, Loufrani established The Smiley Company with his son, Nicolas Loufrani.

In 1997, The Smiley Company filed a trademark application with the United States Patent and Trademark Office.

In 2001, Walmart opposed the registration, citing a likelihood of confusion between the Loufrani smiley and a smiley face Walmart had been using since 1990.

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