Let’s Talk Emoji, Shall We?
As an online entrepreneur I’m always looking for the next venture and with some sellers recently selling their Amazon Merch accounts online I set out to see who else might be selling their accounts, for how much and why.
There is a lot of conspiracy theory right now about if selling your account is within the Amazon terms of service (TOS). So far it seems to be OK and you can, as Amazon states in their TOS that they don’t “support” it, but it’s not specially stated that you can’t.
That might change in the future however. As some of these Merch businesses continue to grow, not giving the ability to exit them would be a serious disadvantage.
Flippa.com is a very popular marketplace for selling online websites, apps and businesses and so I started my search there.
I’ve checked and monitored Flippa and other marketplaces in the past and haven’t found any Merch businesses for sale but now they are starting to pop up as the Amazon Merch program is just over 2 yrs old now.
The one I found can be located at the following link:
and this seller’s niche is a very interesting one. I’ll break down the merits of the business and the pros and cons here in the article, so keep reading.
His niche is popular and dangerous
The first thing that came to mind when I viewed his store is that his strategy was to stay in one niche and go deep in it.
In his case, he’s in the emoji niche.
At first glance, this would scare away anyone from a trademark perspective. After all, this is year we saw the first Emoji movie ever.
Interestingly enough however, trademark around Emoji is still as muddy as trademark law in general. But let’s clear up as much as we can, shall we?
What we know for sure
Emoji as a BRAND seems to be trademarked by a German company, operating the site emoji.com (used to be a Japanese site featuring ASCII art until 2 y ago). So it’s pretty clear to assume that you shouldn’t be making any tee shirts that say the actual word, “emoji” on them.
Emoji are Unicode characters, which means that they’re part of the universal computing industry standard for encoding and representing text on systems around the world. In other words, if you enter an “A” on a computer in California, it will show up as an “A” on a computer in Calcutta.
Thus, emoji are basically like letters and numbers and you’re free to use them to express yourself in your various communications, whether they’re in your emails or text messages. But while you can’t copyright the letter “A” or number “2” or a specific emoji, you can copyright the way in which those characters are represented.
This is why emoji look different on various platforms, whether it’s an iPhone, Android device, or Windows computer. A company like Apple either buys, licenses, or creates the fonts on their systems—including emoji. So you can’t just go around using Apple’s version of an emoji without getting permission.
Can I use a different form of emoji that looks similar?
If you want to use the smiling pile of poo emoji for your own commercial purposes, you typically have two options:
1. Contact the copyright holder for the version you want—such as Apple’s legal department—and hammer out some kind of deal to license their specific emoji.
2. Draw your own pile of poo emoji and use it as you see fit (just be sure your emoji don’t look like a blatant rip off of someone else’s).
Trademark Confusion Test
This could probably be one of the most interesting applications of the “confusion clause” in trademark and copyright law.
As you may or may not know, copyright applies automatically when a copyrightable “work” is created and fixed in some tangible form, including digital formats.
So in more plain speak, whenever you create “something” and put it to fair use in commerce or other channels, it is considered to be loosely protected in the United States.
We say loosely because it is the burden of the trademark or copyright holder to take action when they feel their work in being infringed upon. The amount of damages they feel they have incurred will set up the amounts within the lawsuit that are being sued for.
That being said, to what degree is there “consumer confusion” created if you hire a graphic artist to design your own set of emoji to be used in commercial products like tee shirts?
If there could be confusion created (which is cause to pursue a potential lawsuit) by your emoji set compared to others, then why hasn’t Apple sued Google or vice versa?
Is the emoji font (that’s what it is, not just icons) universal enough that future renditions of it are just wildly accepted and not worth the litigation?
Back to this Merch account for sale on Flippa
As of today, Sept 9th, 2017 (when we’re drafting this article), the sellers Merch account has 21 bids on his account which is outstanding and mind boggling at the same time.
I’ll explain why.
He has a high bid of $2,800 which is a 9X multiple of his monthly net revenue which he claims to be $300 or so. This is absolutely crazy and really speaks to the “gold rush” mentality that surrounds the Amazon Merch program right now.
As an experienced software app owner I can tell you that most established software companies are lucky if they get a 4X multiple.
Buyer Beware: Licenses
In addition to the crazy revenue multiple his listing is generating, he states in his listing that he used art from a company called EmojiOne. EmojiOne’s Premium license DOES NOT allow for use of their art in commercial products for sale such as tee shirts.
You have to contact them and discuss a “strategic partnership” if you want to sell their art on tee shirts and we all know how expensive that might be. So we think there is no way in hell this seller paid a bunch of money for a special license from EmojiOne, just to turn around and sell his business for only $2,800.
So what that means is that there are most likely shirts within his portfolio that contain art from EmojiOne that are not fully licensed. That means at any moment, EmojiOne could alert Amazon (or any other POD marketplace) that the seller is selling art that does not belong to them.
So basically, you could be buying a pile of poop.
Wrapping it all up
We absolutely think you should be able to sell your Amazon Merch account and we hope Amazon will assist in making this easier as time goes on. What each buyer should be doing before they pull the trigger on any purchase however is take the time to completely vet the sale and all of the assets that would be transferred to you at the closing of the deal to protect yourself from future litigation.