Devil Horns Gesture Trademarkable?

By Debby Winters

In the past few months, Gene Simmons, of the famed rock n roll band Kiss, has applied for a number of trademark applications.  Simmons, one of the most successful musician-entrepreneurs in history, owns a number of other trademark registrations through his Gene Simmons Company.  The most notable of his recent filings is for the hand gesture shown below. This application was filed June 9, 2017 claiming it was for live performances by a musical artist; personal appearances by a musical artist, which has first been used in 1974 .  Simmons claimed that it became a part of the band’s act during its Hotter Than Hell tour — on Nov. 14, 1974 to be exact.

Mark Image

At the time of the filing, it was controversial as to whether Simmons was the owner of the hand gesture, as it is not only an international symbol of rock, but a perusal of photographs that predate 1974 show other rock stars using the gesture.  This is now a moot point as on June 20, 2017,  less than 2 weeks after the filing, Simmons filed an express abandonment of the mark.  It appears that he sought registration of the hand gesture itself, rather than an image or depiction of the gesture, describing the mark in the application as “a hand gesture with the index and small fingers extended upward and the thumb extended perpendicular.”  While images or stylized drawings of hand gestures can function, and be registered as trademarks, either by themselves or as part of a design mark, hand gestures in and of themselves cannot function as trademarks.

Even if they could be registered as a trademark, how would one enforce such a thing against others?  That would be virtually impossible.

Nice try, Gene, but no go.

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