In case you haven’t noticed, Wal-Mart has been trying to class up its marketing image, partly by ditching a recognizable mascot:

Under [chief marketing officer John Fleming], the smiley-faced character that has symbolized Wal-Mart’s commitment to low prices, which was created by Bernstein-Rein, has virtually disappeared from mainstream ads.

But there’s a more pertinent reason for the company to wean itself off that character: A trademark challenge from France over licensing rights to le smiley.

So in addition to going after the higher-end consumer — who’ll hopefully swing in for a cheap DVD and walk out with an impulse-buy flat-screen TV — the new ad approach serves as a backup in case Wal-Mart loses its court case. Considering the target, the company’s making an upscale grade of lemonade out of lemons.

I got a kick out of the legal definition of Wal-Mart’s customized Mr. Smiley:

You might think a smiley symbol is merely a yellow circle with two dots and a curvy grin.

But this is what Wal-Mart lawyers see when they gaze into Mr. Smiley’s eyes, according to one of their legal filings: “The ’smiley face’ design is comprised of a circle, within which appears two dots, parallel to each other and in the upper third of the circle, approximating eyes in a human face, and an upturned parabola in the lower third of the circle, approximating a smile on a human face. The design appears sometimes with, sometimes without, lines perpendicular to the corners of the ’smile’ element. It is usually represented in the color yellow.”

Proprietary only in the retail-store business. So your emoticon smileys are still safe for email use