News broke recently that Gene Simmons, co-frontman of the iconic rock group KISS, is trying to register the "devil horns" hand gesture as a trademark with the U.S. Patent and Trademark Office. This iconic hand symbol basically serves as the lingua franca for rock fans the world over, and Simmons' maneuver has inspired plenty of eye rolling from the music-loving commentariat, who see the move as a greedy money grab. To wit:
Cynicism aside, can someone actually "own" a hand gesture? Can you get a monopoly on the thumbs up? Or the middle finger, for that matter?
Now, nontraditional trademarks are nothing new. The special shape of the Coca-Cola bottle is a registered trademark. The color pink - literally the color pink- is a registered trademark of the Owens Corning company (for building insulation). Even sounds have been registered as trademarks: the distinctive "CHUNG-CHUNG" that caps off the opening credits of Law and Order? Registered trademark. So is the Mockingjay whistle from the Hunger Games franchise. Why not a hand gesture?
Theoretically, if a hand gesture were able to meet the requirements of serving as a valid trademark, there's no reason why it couldn't be registered. Trademark law requirements can get pretty tricky however, with more rules, exceptions to the rules, and exceptions to the exceptions to the rules than you can shake a stick at.
One of those rules is that "generic" trademarks are prohibited. No one can monopolize a term or a symbol for the purposes of selling something, when that term or symbol is the generic term for (and essential to actually communicating about) that thing. You can't have Apple® brand apples, for example (Apple® brand computers, on the other hand, are of course perfectly okay).
Does this girl from the 1986 film "Heavy Metal Parking Lot" owe Gene Simmons a royalty? Or is it the other way around?
This is where I predict that Gene's trademark application is going to get torpedoed. The "devil horns" hand symbol has become synonymous the world over with rock music - and that is exactly the category of goods and services that Gene is looking to obtain a trademark for (international class 41 for "Entertainment, namely, live performances by a musical artist; personal appearances by a musical artist," to be precise). Gene Simmons is essentially looking to co-opt Rock™ brand rock. It can't be done. Provided the USPTO isn't asleep at the wheel, his application won't be successful.
So, why do it? Why spend the money to file a trademark application that is destined to fail? It's just bound to generate a bunch of controversy over the origins of the symbol as well as a ton of free nationwide coverage about your band and---- wait a second!!! Instead of a cynical money grab, could Simmons' antics instead be a cynical publicity grab?
When you're rich as God (or a God of Thunder), the approximately $1,000 cost of filing a wacky and doomed trademark application is just a drop in your $300 million bucket. I'm filing this one under "F" for Free Press.
Mikhael Bortz is an intellectual property and entertainment law attorney based out of Chicago and Miami. Mikhael currently is a staff member for the Chicago Underground Film Festival and a performing drummer in a rock band. In practice for over ten years, she concentrates her legal practice in worldwide intellectual property, film financing and production, music, and fine art issues.