Gene Simmons (yes, he of rock band Kiss) attempts to register a trade mark for the widely used heavy metal ‘devil horns gesture always looked doomed to fail, and sure enough, they have.
The Hollywood Reporter reported that Simmons had applied to the U.S. Patent and Trademark Office (USPTO) for protection of the gesture in class 41. Simmons claims he first used it in commerce in 1974, although it’s fellow rocker Ronnie James Dio (Rainbow, Black Sabbath) who generally is credited with popularising the gesture, and has said he learned it from his Italian grandmother as a way to ward off the evil eye.
In the application, the sign is described as “a hand gesture with the index and small fingers extended upwards and the thumb extended perpendicular”. The registration covered “services having the basic aim of the entertainment, amusement or recreation of people” and the “presentation of works of visual art or literature to the public for cultural or educational purposes”. The application further identified the types of services for which registration was sought as “entertainment, namely, live performances by a musical artist; personal appearances by a musical artist”.
Simmons said that “the mark was first used by the applicant [him] or the applicant’s related company or licensee or predecessor in interest at least as early as 11/14/1974, and first used in commerce at least as early as 11/14/1974”. Simmons submitted a photograph of himself with the Foo Fighters Dave Ghrol as evidence of his use of the sign.
The sign is not unique to heavy metal and has clearly been used pre-1974. The IPKat reported that the gesture conveys “I love you” in some sign languages, or is used as a short-hand for the adjective or expression “to be cheated on” in many Latin languages since the fifteenth century (“cocu” in French, “cornuto” in Italian).
The Twittersphere should have now alerted Simmons to some earlier uses of the mark in the context of entertainment, and indeed its use by fellow musicians. A cartoon image of Beatle John Lennon uses the gesture on the cover of Yellow Submarine in 1966, and the band Coven display the gesture on the cover of their album Witchcraft, released in 1969. None of this was welcome news for Simmons!
Sam O’Toole (Lawdit Music) adds
If the filing is accepted and the mark is subsequently registered, Mr Simmonds would potentially be able to cash in on other artists use of the ‘devil horns’ gesture. This is because he is filing for use in entertainment, namely, live performances by a musical artist; personal appearances by a musical artist.
However, fear not my friends and rockers this side of the pond, trade marks are territorial. This means that as his application is for a US trade mark he would only be able to cash in on the use of the mark in the US.
That is, if he is even able to cash in on the use of the ‘devil horns’ mark. Back In 2010 Dallas Page, a professional wrestler, alleged that music group 2OH!3 used his ‘Diamond Cutter trade mark’. The Diamond Cutter trade mark, is a hand sign consisting of two hands touching at the index finger and thumb to form the shape of a diamond. The allegations were heard in the Central District Court of California, however according to records held by the Trade Mark Office the case was settled out of court.
Whether or not the ‘devil horns’ hand gesture is even capable of being a trade mark is one issue, and the enforceability of the trade mark rights is another issue. This lawyer is certainly sceptical as to the trade mark application being in the spirit of rock and roll.
And sure enough, and as we and Sam suspected, the application has now been withdrawn (by express abandonment)