Gene Simmons, the bass guitarist and co-lead singer of the famous band Kiss had recently applied to the USPTO to register the “devil’s horns” (a hand gesture) as a trade mark. The pertinent application describes the sign as “a hand gesture with the index and small fingers extended upward and the thumb extended perpendicular”. The application had been filed under class 41 covering among other things, “services having the basic aim of the entertainment, amusement or recreation of people” and the “presentation of works of visual art or literature to the public for cultural or educational purposes”. Furthermore, the application confirmed the relevant types of services to be “entertainment, namely, live performances by a musical artist; personal appearances by a musical artist”.
The applicant claimed that “the mark was first used by [him] or [his] related company or licensee or predecessor in interest at least as early as 11/14/1974, and first used in commerce at least as early as 11/14/1974”. Mr Simmons had furnished a photograph of himself to substantiate his use of the said sign.
It is imperative to appreciate that while images or stylised drawings of hand gestures can be registered as a trade mark, hand gestures in and of themselves cannot satisfy the crucial element of functionality. Moreover, hypothetically speaking, even if the former were true, there would be no practical way to enforce the trade mark against other entities.
Mr Simmons had expressly abandoned the application within two weeks of filing the mark after possibly reconsidering the validity of his intellectual property rights relating to the hand gesture.