Thumb up or thumb down?
Kiss frontman Gene Simmons is awaiting the signal from the U.S. Patent and Trademark Office after he filed an application Friday for a trademark on a hand gesture. Rock fans are probably familiar with the sight. Here’s the drawing that’s included in the application:
According to Simmons, this hand gesture was first used in commerce Nov. 14, 1974. That appears to correspond with Kiss’ Hotter Than Hell tour.
Speaking of hell, the hand gesture appears quite similar to what’s known as the “Sign of the horns,” a devil signal that, according to an entertaining entry from Wikipedia, dates back to the 5th Century BC founder of Buddhism. It’s also the American Sign Language gesture for “I love you.”
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Simmons is claiming the hand gesture mark for “entertainment, namely, live performances by a musical artist; personal appearances by a musical artist.”
Before the Trademark Office allows this hand gesture to be registered — it perhaps wouldn’t be unprecedented — an examiner would consider the likelihood of confusion and, possibly, whether it’s too generic to be associated with Simmons. Here, for example, is the album cover for the Beatles’ 1966 single, Yellow Submarine/Eleanor Rigby:
On the road to registration, Simmons might have other obstacles besides John Lennon. Among them could be how in certain Mediterranean cultures, the horns — or “rock on” — gesture is, in the words of The New York Post, “made to a man to imply that his wife is cheating on him.” Whether or not that matters is possibly impacted by the U.S. Supreme Court’s upcoming ruling in Tam v. Lee. Then again, maybe Simmons is saying “I love you,” but if so, those who use sign language might not love what he’s doing.
An even bigger question is the extent to which Simmons could enforce trademark rights even if his registration is accepted.
Former professional wrestler Diamond Dallas Page has tried. Some reported that he had sued Jay Z over the “Roc-A-Fella Hand Gesture,” alleging it was a trademark infringement of his “Diamond Cutter hand gesture,” although we couldn’t locate any complaint. However, we did find a lawsuit filed by Page in 2010 against the American electronic music duo, 3OH13. Here was the complaint filed in court. According to records from the Trademark Office, the case settled.
No matter what happens for Simmons, we guarantee nobody will ever be able to trademark a handshake.
