Hand gesture trademark application likely "publicity stunt" by Gene Simmons, but practitioners should engage to quell IP backlash 16 Jun 17
As news articles around the world have reported, Gene Simmons, frontman of rock band KISS, has filed a trademark application for the so-called ‘devil horns’ hand gesture. The news has caused outrage towards both Simmons and the concept of trademark law itself, although some point out that it is likely just a publicity stunt. Nonetheless, faced with yet another IP backlash online, trademark community members should proactively engage in the discussion and quell misperceptions about the law.
Simmons already has a significant trademark portfolio, with the Gene Simmons Company having at least 198 marks across various global jurisdictions. His latest application – described on the form as “a hand gesture with the index and small fingers extended upward and the thumb extended perpendicular – was first reported by Hollywood Reporter due to its unusual nature. It has been commonly described as the ‘devil horns’ gesture, which Simmons claims on the application was first used in commerce in November 1974 (coinciding with his band KISS’ Hotter Than Hell tour). But various articles have pointed out past uses of the gesture (including on the cover of the 1966 single Yellow Submarine/Eleanor Rigby by The Beatles), with many pointing out that it is also the American Sign Language gesture for ‘I love you’. In fact, it is so widely known that it was turned into an official emoji in 2015.
The response to the application has, unsurprisingly, been almost universally negative. There have been thousands of social media posts decrying Simmons for his attempt to trademark a well-known sign language gesture (with many, many uses of the middle finger emoji by enraged users). Others have directed their ire at the trademark system itself (mostly angry that an entity could ‘own’ a common hand gesture). Some even ranted about other forms of intellectual property, which wasn’t helped by numerous media reports referring to the application as being a copyright or a patent. This was of particular concern to the non-profit advocacy organisation the Future Of Music Coalition, who tweeted: “Gene Simmons isn't trying to copyright the devil horns. He's not trying to patent it either. He's trying to trademark it! He'll probably fail. What's most concerning here is that so many don't know the difference between copyright, trademark, and patent. This is not just a nitpick. It has serious consequences for policy debates on all these issues. So much nuance is lost when people lump everything into one broad category of intellectual property, which they're either ‘for’ or ‘against’. It ends up encouraging polarization, which calcifies as ‘us v them’ attitudes, making it harder to just fix problems.”
The wider issue, according to commercial litigation and IP lawyer David Clark on his blog Generic Fair Use, is that the application is likely a publicity stunt and any reaction – even negative – plays into the hands of Simmons himself. “He has no intention of actually acquiring a trademark registration for the Devil Horns”, Clark claims, expanding: “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.”
World Trademark Review contacted Simmons to ask why he applied for the mark, but we did not receive a response.
So while the rock musician may be achieving his goal of being in the spotlight, it is a story that may potentially be fuelling the negative image that IP, including trademarks, has with the general public. We’ve written before about the need for the trademark community to fight back against the “heightened hostility” and “mistrust” of intellectual property in the public sphere, and the need to educate the media and the public on the important role of IP. This is yet another example of that, making it important that industry commentators speak out on social media and even reach out to angry users in a bid to educate them on trademark law.
Update: a week after the publication of this article, Gene Simmons expressly abandoned the trademark application for the 'devil horns' hand gesture.
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