Gene Simmons of the rock band Kiss® has applied to register a hand gesture as a trademark for entertainment services. His application says he’s been using the hand gesture since 1974. November 14, 1974, to be exact. Here’s the drawing of the gesture.
There are plenty of registrations for stylized versions of hand gestures, like these:
But this is different. This is a hand gesture itself. Is that ok?
There’s nothing wrong with having a hand gesture as a trademark. Anything can function as a trademark if it identifies a particular source of goods or services. Carol Burnett is extremely well-known for pulling her earlobe at the end of a performance. I would definitely describe her iconic ear-pull as a trademark.
But what about Simmon’s hand gesture?
Imagine a picture of a rock singer, with all identifying features scrubbed out, but the hand gesture clearly visible. If I show that to people who listen to rock music, how many of them would say: “Oh, yeah, that’s Gene Simmons” and how many would say: “Not sure who that is, but he seems cool.”?
In other words, is this something that Simmons does, or is it something rock stars do? The answer to that question is at the core of whether the hand gesture is a trademark.
If this hasn’t been trippy enough for you, what counts as infringement for hand gestures? Lots of rock stars use the devil’s horn gesture. Is that infringement? Can Gene Simmons make them stop?
Trademark law is soooooooo cool.