On June 9, 2017, Gene Simmons – the bass player and lead tongue of the classic rock band KISS – filed an application to register a trademark. This by itself is not newsworthy. Gene Simmons has previously sought to register hundreds of words, slogans, and logos he has identified as his personal trademarks. What caught everyone’s attention this time was the subject matter: Gene Simmons asserts that the “devil horns” hand gesture is a trademark that he owns. Yes. A hand gesture. A gesture seen at every single live music event today.

Without belaboring the point, Gene Simmons is not going to acquire a registration for this alleged trademark. This hand gesture is not a trademark. Nor would it belong to Gene Simmons even if it were a trademark.

At the risk of giving too much attention to a frivolous application, here are a few reasons why this application is going to fail.

This Devil Horns hand gesture is not a trademark

To acquire a certificate of registration from the United States Patent and Trademark Office, the applicant must first demonstrate that there is an existing trademark that is used in commerce and that the applicant is the owner of that trademark.[1] The applicant must also submit a verified statement that this mark is used in commerce, the date of first use of the mark in commerce, and a “specimen” demonstrating this alleged used in commerce.

According to the USPTO, a trademark is:

a word, phrase, symbol, and/or design that identifies and distinguishes the source of the goods of one party from those of others. A service mark is a word, phrase, symbol, and/or design that identifies and distinguishes the source of a service rather than goods. Some examples include: brand names, slogans, and logos. The term “trademark” is often used in a general sense to refer to both trademarks and service marks.[2]

Remember, the government only has the right to register and protect trademarks to the extent they are used in commerce. Trademark law is solely derived from the commerce clause of the Constitution after all.[3] Trademarks must also identify and distinguish the source of goods of one party from those of others. This is where Gene Simmons’ application fails.

A hand gesture can be a trademark so long as it operates to identify the source of goods and services. This particular hand gesture, however, is not a source-identifier. Even if it did identify the source of goods and services, that source would not be Gene Simmons or his band KISS. By lacking this source-identifying feature, Gene Simmons cannot overcome the very first hurdle of a trademark application. His application will be rejected in whole.

 

Etymology of the Devil Horns hand gesture and ownership thereof

The immediate reaction to the Gene Simmons story yesterday was “but Dio!” Yes, the “sign of the horns” is often attributed to Ronnie James Dio, through his grandmother. At least in the context of its use by performers in the music industry. Though there are pictures and anecdotal evidence that the band Black Sabbath was using the same style of hand gesture before Dio joined the band in 1979. At least one picture is shown of a band member using a similar gesture in 1971 as part of a promotional photo.

Gene Simmons’ application claims “first use” only dating back to November 1974.

Trademarks are unlike patents, however. The mark does not necessarily “belong” to the purported inventor. Inventorship is not a factor in determining the existence of a trademark or its ownership. Even if Dio popularized the hand gesture and pop culture identifies him as the originator, that does not by itself make this hand gesture his trademark. Nor does it make it a trademark at all. Remember, a trademark must identify the source of goods or services. Does a random devil horns hand gesture immediately make a music consumer or a concert attendee think of Ronnie James Dio? No.

Even more confusing is that Gene Simmons does not even seek to register the “classic” form of the devil horns hand gesture. This is the drawing he submitted with the application:

 

Notice the placement of the thumb. Nearly every picture of Ronnie James Dio has the thumb tucked in. Whereas Simmons’ application shows the thumb extended outward. This makes it a different gesture in a trademark analysis, though it may be subject to factors of “likelihood of confusion” with Dio and others who might claims prior use and seniority. Meanwhile, this particular gesture is also translated as “I love you” in American Sign Language.

What is interesting is that this same “sign of the horns” is also considered to be offensive in many cultures. Yes, an expression of love in America is equally offensive in Spain. The Supreme Court right now is still considering whether disparaging trademarks can be registered by the USPTO. Currently, the trademark office will refuse to register marks that consist of or comprise “immoral, deceptive, or scandalous matter.”[4] Thus, even if we assume that this devil horns hand gesture is a trademark that identifies Gene Simmons’ or KISS’ goods and services, it may still fail to satisfy the requirements for registration. The law has no respect for heavy metal, huh.

The Devil Horns hand gesture is generic

Pursuant to the Trademark Manual of Examining Procedure, a generic term is one that “the relevant purchasing public understands primarily as the common or class name for the goods or services.”[5] Generic terms are incapable of registration and do not function as trademarks because they fail to identify a single source of goods and services. Instead they identify an entire genus of goods and services. Among those marks that are now considered generic: ASPIRIN, ESCALATOR, THERMOS, VIDEOTAPE. These are terms that once operated to identify a particular source of goods, but over time became the garden-variety term used to identify all goods of a similar type within that particular market or industry.

You cannot attend a rock concert today without seeing someone display the Devil Horns gesture. While this was originally a heavy metal sign, it has become appropriated by nearly every musical genre. I personally can be seen posing with this hand gesture in nearly every concert photo I take. I can attest that it has nothing to do with Gene Simmons. Or Dio. Or Black Sabbath. Or even the band I am watching at that particular time. The Devil Horns are a generic expression of a “let’s rock” emotion. It certainly is not a trademark.

 

This is all a publicity stunt

Gene Simmons almost certainly knows all of the above. He has no intention of actually acquiring a trademark registration for the Devil Horns. He wants the attention. We just gave it to him.

Gene Simmons spent probably $1,500 to submit this trademark application (filing fees are as low as $225 with the USPTO). For this investment, he was able to dominate at least a day’s worth of a music industry news cycle. That is nothing short of brilliant. Granted, he may have knowingly made misrepresentations when he or his representative submitted a declaration that he owned this trademark in good faith, but that is rarely prosecuted.

This is a man who is a shameless capitalist. His band is known more for its merchandising than for its music. KISS is literally selling “strings” for air guitar. And people are buying it. KISS also sells licensed caskets, board games, trading cards, and even condoms. Gene Simmons is a marketing genius. He really is.

And we keep falling for it.

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[1] See generally 15 U.S.C. § 1051(a) and T.M.E.P. §§ 806.01(a) and 901.01.

[2] https://www.uspto.gov/trademarks-getting-started/trademark-basics/trademark-patent-or-copyright

[3] T.M.E.P. § 901.01; 15 U.S.C. § 1051.

[4] 15 U.S.C. § 1052(a).

[5] T.M.E.P. § 1209.01(c).