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Why KISS legend Gene Simmons failed to trademark “rock sign”

Brands are increasingly using non-traditional trademarks as identifiers, with hand gestures being the latest trend. But KISS bassist and singer Gene Simmons courted controversy when he tried jumping on this particular band wagon.
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When you try trademarking a sign that has become synonymous with the rock world, known to many as “the devil’s horns,” you’ll be met with outrage. It’s no wonder then that Gene Simmons, from KISS, dropped the battle pretty quickly.

Placing a trademark on a movement or gesture was never going to be a walk in the park. Unlike sayings and, more recently, shapes and colours, it’s difficult to claim them as being distinctly associated with just one person or company. That’s not to say there haven’t been successes.

Two cases spring to mind – one more so because of the lawsuits around it. The man behind the iconic Electric Slide dance move took to suing people on YouTube for using it, suggesting only actor Joe Pesci, in The Super, had ever done the move correctly. He even took a swing at The Ellen DeGeneres Show for allowing actress Teri Hatcher to perform it live in 2006.

Another example comes in the form of Google, though it should be noted the copyrighted gestures are in conjunction with Google Glass. In 2011, it filed Hand Gestures to Signify What is Important.

One would see people make a heart shape with their hands in order to “like” something. And the almost stereotypical use of two L shapes with your fingers would allow you to take a picture of what is framed inside.

Gene Simmons doing his not-so patented sign

Gene Simmons doing his not-so patented sign

The KISS star, which Mashable claimed had “started” the trend during the 1974 Hotter Than Hell Tour, obviously didn’t make it as far. There are numerous reasons why his endeavour was doomed from the start though. Let’s say he didn’t exactly do his homework as the big question in the media became, “who came up with the hand gesture?”

According to Black Sabbath drummer Vinny Appice, it’s “an old Italian thing,” making it impossible for Simmons to have invented it. In an Ouch You’re on My Hair podcast, Appice claimed it was something band member Ronnie Dio had done all the time – and that he “would be pissed off at the announcement. Oh, yeah!”

He added: “Dio’s Italian hand gesture was called the maloik. His grandmother, and the elders in my family too, used it as a way to either to put horns on people or wish them good luck.”

Similarly, it means I love you in American Sign Language, which was created in 1817. Coven’s 1969 album cover of Witchcraft Destroys Minds & Reaps Souls also features it. It’s been suggested that the cover was met with such success that singer Jim Dawson went on to make the sign at the start of every concert. Let’s also not forgot how the 1960 series Spider-Man made good use of it.

“Even John Lennon is shown using the gesture on the cover of the Beatles’ 1966 single, Yellow Submarine/Eleanor Rigby,” George Sevier, principal associate at Gowling WLG told Real Business. “But the fact that Simmons was not the first to use the gesture, would not have prevented him from getting a trademark registration.”

Fair enough. Simmons used the sign a lot. But so did others – and they didn’t like his attempt. This brought with it two unique challenges.

“Trademarks must be distinctive,” Sevier explained. “If all the comments tell us one thing, it is that the hand ‘devil horns’ gesture is widely used by different artists, and consumers do not assume any tie to Simmons or KISS.

“Once registered, trade marks give a monopoly to their owner. So if this application was registered, in theory it could have been used prevent anyone else from using the gesture in relation to live performance. Because this gesture is widely used, there are a lot of people who would want to make sure Simmons does not get the monopoly.

“It seems he saw the scale of the opposition he was facing, and made the sensible move of withdrawing the application.”

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Shané Schutte

Shané Schutte is a senior reporter at Real Business, with a particular specialism in employment and business law, human resources, information technology and sales/marketing.

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