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Can Gene Simmons trademark his horns gesture? Maybe — but then there's the enforcement issue

 (Jay L. Clendenin / Los Angeles Times)
(Jay L. Clendenin / Los Angeles Times)

Gene Simmons of KISS is claiming ownership of the ubiquitous devil's horns hand gesture he flashes in photos and in front of fans.

The rocker, nicknamed the Demon, filed an application with the U.S. Patent and Trademark Office Friday to assert himself as the owner of the the move, which is instantly recognizable to rock fans.

"The mark consists of a hand gesture with the index and small fingers extended upward and the thumb extended perpendicular," the official application explains. Simmons' legal team also included in the application a sketch of the gesture and a photograph of Simmons using it.

A trademark typically protects brand names and logos used on goods and services. For Simmons, those goods and services are "entertainment, namely, live performances by a musical artist; personal appearances by a musical artist."

Per his signed declaration, he believes "no other person, firm, corporation or association has the right to use said mark in commerce, either in the identical form or in such near resemblance." When applied or used by another person, Simmons claims, it would likely cause confusion or be deceiving.

The guitarist also claims the gesture was first used in commerce on Nov. 14, 1974, which corresponds to Kiss' Hotter Than Hell tour.

 (Kevin Winter / Getty Images)
(Kevin Winter / Getty Images)

The problem is, the gesture has become ubiquitous and means different things to different people.

In American Sign Language, it means "I love you." Flipped upside down, it's what Spider-Man's been doing to sling his webs around in comic books, though in those instances it's outside of the realm of entertainment that Simmons is pursuing. But it has been used by other rockers: Black Sabbath's Ronnie James Dio has flashed it, and John Lennon also held it up on the album cover for the Beatles' 1966 single "Yellow Submarine/Eleanor Rigby."

So the move may be too generic to be associated with Simmons alone — which will be considered once his case is assigned to an examiner in the next few months, according to trademark attorney Michael Cohen with Cohen IP Law Group in Beverly Hills, who deals with trademark, patent and copyright infringement cases.

"There's plenty of other trademarks that have been filed for the same symbol," Cohen explained. "He's actually trying to catch the idea or concept of the symbol [in his application]. So, to me, he's literally trying to trademark the hand gesture as opposed to the drawing of the hand gesture."

Cohen believes that it would be very difficult for Simmons' application to be approved because the gesture has become "genericized," though the approval is not outside the realm of possibility.

"He also has to establish that that hand gesture is associated with him, that he has what's called 'secondary meaning' associated with him. So in the mind of consumers that go to rock performances, are they going to associate that symbol with Gene Simmons?"

If Simmons were granted federal approval, the next step would be enforcement. If someone used the horns symbol in the realm of entertainment, Simmons could have legal grounds to file a federal lawsuit or obtain an injunction to prevent others from using it too. 

But even if he got the registration, it wouldn't mean he's immune from other people invalidating the trademark, Cohen said.

"You have a duty to enforce that mark. If others are using it unauthorized and he doesn't do anything about it, then that can be used against him," Cohen said. "A judge or jury will look at what Simmons has done over the decades to enforce the mark."

Failure to enforce other entertainers' use of the horns cou ld be deemed "abandonment of the mark."

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