United States: Celebrity Trademark Watch: Gene Simmons Claims Exclusive Right In Hand Gesture

Last Updated: June 28 2017
Article by Jenevieve J. Maerker

Earlier this month, KISS guitarist Gene Simmons filed an application with the United States Patent and Trademark Office ("USPTO") to register the "devil's horns" hand gesture, which he routinely flashes at rock shows, as a trademark for "entertainment, namely, live performances by a musical artist; personal appearances by a musical artist." This bold move brings up a number of interesting questions, ranging from "Does the gesture really function as an indicator of source that points to Simmons?" to "How will he ever enforce it?" to "Can you really claim trademark rights in a hand gesture?" For a number of reasons, it will be surprising if Simmons actually manages to obtain a registration and use it to prevent others from flashing the horns, but his application does provide an amusing series of thought exercises.

The Application

The drawing of the mark in Simmons's application looks like this:

The application describes the mark as "a hand gesture with the index and small fingers extended upward and the thumb extended perpendicular." The application claims use of the mark in connection with the services since November 14, 1974, just after the release of Hotter Than Hell, and the specimen demonstrating how the mark is used in commerce consists of the following photograph:

Yep, there he is, using the hand gesture arguably to identify himself as the source of this instance of "personal appearances by a musical artist" services. I mean, I'm not a member of the Kiss Army, but I can at least tell you which one is Gene Simmons in this photo, because he's the guy making the hand gesture. Source identification at work?

The Horns

A quick glance around the Internet suggests that Simmons may have a difficult time making the case – either to the USPTO or in enforcement contexts – that the "horns" gesture is not generic, and that he has used it substantially exclusively (such that it has acquired distinctiveness and he has not abandoned it through failure to police infringers). The Wikipedia article on "Sign of the Horns," for example, notes a number of other musicians who have used it, ranging from Ronnie James Dio of Black Sabbath to John Lennon, and refers to the sign's "common use in heavy metal music." (And as a proud Texan, I must point out that, outside of the music context, a horn hand gesture is also famous as the University of Texas Longhorns' "Hook 'em Horns" symbol. Indeed, UT president Greg Fenves has kicked off a lively debate on Twitter in the wake of Simmons's application.)

Even another pending trademark application seems to consider the gesture generic in relation to music: Eris Industries Ltd. has applied to register the image below in connection with various computer-related goods and services:

The applicant describes this mark as consisting of "a brown groundhog/marmot outlined in black and partially in white standing upright on its hind paws, with its right paw behind its back and its left paw to display the heavy metal sign of the horns hand gesture." Apparently, nobody told this marmot that he was flashing an arguably proprietary sign.

It is worth noting, however, that upon closer inspection, most of these instances of the "sign of the horns" differ from Simmons's claimed mark in that the thumb is not extended. Wikipedia describes the gesture as being formed "by extending the index and little fingers while holding the middle and ring fingers down with the thumb." Perhaps Simmons is taking the position that his gesture with the thumb extended is distinguishable from the no-thumb version, and that he therefore does not need to address the ubiquity of the latter.

The Precedents

Setting aside the question of whether Simmons's gesture actually does function as a trademark for his services, what about the more fundamental question of whether a hand gesture can act as a trademark? The Lanham Act provides for infringement remedies when a defendant uses a confusingly similar "word, term, name, symbol, or device" in connection with goods or services. Given that sounds and smells can be protected and registered as trademarks ( piña colada-scented ukuleles, anyone?), there appears to be no reason why a hand gesture could not count as a "symbol" or "device" that identifies the source of services, or perhaps even goods, if it is used at the point of sale.

There are, however, only 59 records in the USPTO database with the phrase "hand gesture" in the description of the mark, and the vast majority of them appear to be for logo marks containing an image of a hand gesture, rather than for the transitory hand gesture itself when made by a live person in the course of providing services or goods. Indeed, there is not one registered mark with "hand gesture" in the description that appears to claim rights in a hand gesture per se.

In one instance in which an applicant did appear to attempt to register an actual hand gesture, the PTO was resistant. In 2013, Lambda Tau Upsilon Christian Sorority applied to register a mark described as a hand gesture with the following drawing:

The services were "association services, namely, organizing chapters of a sorority and promoting the interests of members thereof," and the applicant submitted as the specimen a screen shot of its website featuring a photograph of people making the gesture shown in the drawing. The PTO issued an Office Action rejecting the specimen because it did not contain "a comparable drawing" as shown in the application (emphasis added). The Examining Attorney did not say explicitly that registration of a hand gesture per se was not permitted; rather he seems not to have even considered the possibility that that is what the applicant intended. The sorority responded to the Office Action by submitting a substitute specimen consisting of a photo of a t-shirt bearing the drawing of the hand gesture, but this was likewise rejected because a t-shirt did not show use in connection with association services. At that point, the sorority abandoned further attempts to register its hand gesture mark.

In addition to Simmons's application, there is one other pending application that may represent an attempt to register rights in a hand gesture per se. It is an intent-to-use application filed by Tan Cha – Hi Tea, Inc. for – guess what! – a thumbless "sign of the horns," in connection with "restaurant services, namely, providing of food and beverages for consumption on and off the premises":

Since this is an intent-to-use application, there is no specimen to shed light on whether the applicant is actually claiming rights in a gesture to be flashed, for example, by servers when delivering beverages (rather than for the drawing of a hand making the gesture to be used on signage at the restaurant) but that certainly seems to be a plausible scenario.

If You Had to Pick a Visual "Trademark" for KISS...

Speaking of non-traditional marks, in case you were wondering, KISS does own a registration for a mark consisting of "face paint showing star overlaying eye." The drawing looks like this:

However, the registration does not cover entertainment services but rather "clothing namely, t-shirts, jackets and caps," and the three specimens that have been accepted over the years are as follows:

Once again, despite what the drawing and its description might suggest, it appears that the mark owner has shied away from actually attempting to register an aspect of personal appearance as a mark for services, in favor of registering a representation of that appearance as a mark for goods.

We look forward to seeing what becomes of Simmons's new application. In the meantime, ... Hook 'em Horns!

To view Foley Hoag's Trademark and Copyright Law Blog please click here

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
25 Oct 2017, Webinar, Boston, United States

Foley Hoag will present a 60-minute webinar on Wednesday, October 25 at 12:30 pm EDT, offering guidance for in-house counsel regarding the basics of trademark and design protection in the European Union. Attendees will learn about the opportunities and pitfalls to be on the lookout for when looking to secure, protect, and enforce an IP portfolio overseas.

1 Nov 2017, Webinar, Boston, United States

Please join Foley Hoag on Wednesday, November 1, 2017 for a webinar that covers the details of drafting an appropriate arbitration clause for your company’s commercial contracts.

9 Nov 2017, Conference, Waltham, United States

Please join us on Thursday, November 9 at the Westin Waltham Hotel for our quarterly New England M&A Forum, which brings the latest in market trends and recent legal developments to the New England M&A professionals' community.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.