Even among casual music fans, Gene Simmons and the band KISS are well known and easily recognizable. With their elaborate make-up and costuming, the rock band has iconic status, and although they have been performing for multiple decades, only just recently Simmons decided to file for trademark protection on one of his signature symbols, the devil’s horn hand sign. But even with decades of use and a strong association with the band, the hand gesture may have too many hurdles to overcome for trademark protection.
Simmons filed a trademark application on the hand sign in June, 2017, claiming use in commerce all the way back to Nov. 14th, 1974. The application claims use in the class of “entertainment, namely, live performances by a musical artist; personal appearances by a musical artist.” The sign consists of a hand gesture with the index and small fingers extended upward and the thumb extended perpendicular.
While a hand gesture is not typically associated as a trademark, such a use could serve as a source indicator. Trademarks are used to identify the source of a good or service so if a unique hand gesture became so associated with a particular good or service then it could potentially qualify for trademark protection. An example is the University of Texas “Hook ‘em Horns” hand symbol that the University has had some success in protecting.
The problem with a hand gesture as a trademark is that it would be difficult to enforce. Would there be a likelihood of confusion when people use it? When do you decide to bring legal action to enjoin its use? Since making of the sign is usually a short moment, how could injunctive relief be enforced? How do you stop masses of people at a concert from making the sign?
Most likely, if the registration is granted, enforcement from a practical standpoint will be limited to preventing unauthorized commercial use by other performance artists. If for example, someone was using the hand symbol in a recorded commercial to advertise an upcoming live performance, the Simmons might be able to have the advertising enjoined, but stopping people from using it live would be difficult.
The other problem for Simmons is that while he uses the gesture as a representation of devil horns, American Sign Language uses the same sign as a symbol for love, muddying the waters a bit as to the unique source indication. If someone was accused of infringing the trademark, they might argue they were indicating the ASL symbol for love. Moreover, while Simmons may have helped pioneer the gesture, it seems to have taken off as a general rock based sign, rather than something specific to Simmons and KISS, making it somewhat laudatory or maybe even generic.
This will be an interesting application to watch as there are several challenges Simmons may have to address. If you are interested in filing a trademark or have questions about the trademark process, please contact the trademark attorneys at Trademark Access. Let our experience protect your valuable brand.