Last week, Gene Simmons has withdrawn his application to trademark the devil horns hand gesture used by many rock and metal fans all over the world. The original papers filed at US Patent and Trademark Office have been updated and say that Simmons’ claim has been abandoned. The papers read, “The owner of the trademark application withdrew (e.g. abandoned) the application and the application is no longer active.”
News came earlier this month that the Kiss frontman had filed a document with the United States Patent and Trademark Office claiming he had invented the devil’s horn “mark” on, specifically, November 14th, 1974. The backlash was pretty instant, with Ronnie James Dio’s wife Wendy calling the move “disgusting” and saying Simmons had “made a complete fool of himself.” After all, who hasn’t thrown up a rock hand once or twice in their life? Either way, it seems the painted-face rocker realized his move was pretty boneheaded and he has officially abandoned the application.
Reasons for failure of application
His evidence of use did not actually show the trademark.
The application also would have been refused on the basis that the gesture is a generic symbol that does not function as a trademark, given its widespread use by other musical artists.”
The symbol is in the opposite direction of the example drawing Simmons submitted along with his application.
An earlier post dedicated to Simmons’s trade mark application reported on a number of uses of the so-called devil’s horn (also known as ‘I love you’ in sign language) recorded prior to Simmons’s alleged first performance of the hand gesture. These examples of prior use depicted a rather bleak picture of Simmons’s chances to secure trade mark protection in relation to the sign. Indeed, it seemed very likely that the US Patent and Trade Mark Office would have rejected the application for lack of distinctive character. Nevertheless, a positioning of the US governmental body on the registrability of a hand gesture in principle would have been most interesting. Indeed, one could think of other hand gestures enjoying greater distinctive character (inherent or acquired) which may, one day, find their way to the US Patent and Trademark Office’s desk.
We will have to wait for another application to see whether the limitations of trademark law can move forward or forward in front of smell, color or sounds, by adding signals in the category of an extraordinary marks or not.