Just how easy is it to trademark a hand gesture?

If you’ve ever been to see a heavy metal concert, the chances are likely that at least once you have seen someone with their hand held aloft, their index and pinky fingers pointed upwards and their thumb perpendicular. It’s a common gesture that many people know as the ‘devil’s horns’, and is also the American Sign Language (ASL) gesture for ‘I love you’, but there was a recent attempt to trademark it by a certain former rock star.

In June of this year, Gene Simmons from glam-rock band KISS submitted a trademark application for the devils’ horns hand gesture on the basis of “entertainment, namely, live performances by a musical artist; personal appearances by a musical artist”. According to Simmons himself, the first known use of the hand gesture was recorded on November 14th, 1974, which was the same time as KISS’ own Hotter Than Hell Tour.

The move from Simmons — who also owns the trademark to the famous image of a moneybag with a dollar sign on it — unsurprisingly received considerable backlash, not just from those who believe the devil’s horns gesture is far too generic to be trademarked by a single individual, but also from others who see Simmons as trying to unfairly capitalize upon one of the most commonly-used phrases in the ASL.

The dust barely had time to settle on this story before Simmons announced that he would actually be abandoning the application altogether, not even two weeks before it was filed. Although the reasons why have not been confirmed, the negative public reaction surely wouldn’t have helped his case. But how hard is it to trademark a hand gesture, and has it ever been achieved before?

Simply put, a hand gesture can never be trademarked on its own. It simply does not fit into the criteria of many trademark offices, and it would be impossible to stop the public from making such gestures on the grounds that they had been trademarked by someone else.

The only way that a hand gesture could possibly be trademarked is if an audience could instantly relate it back to the person(s) applying for the trademark. This is obviously not the case here, as the devil’s horns gesture has been used for decades by all manner of bands and individuals.

However, this is not to say that it is impossible to trademark hand gestures. In 1996, the American professional wrestler Diamond Dallas created the ‘diamond cutter’ hand gesture — which involved joining the thumbs and index fingers on each hand to create a diamond shape — and later went on to successfully trademark it. When the rapper Jay Z adopted a similar gesture almost a decade ago, Diamond Dallas filed a lawsuit against him on the grounds of trademark infringement, and the case was eventually settled out of court for an undisclosed amount of money.

So, although hand gestures can theoretically be trademarked, it is extremely difficult to do so and at the very least the gesture must be absolutely synonymous with the applicant. No matter the strength of the case, these are extremely murky waters to wade in and the efforts involved can often outweigh the benefits — something that Simmons seems to have learned from his recent escapade.

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