“God of Thunder” meets the USPTO

Some of you may have heard that Gene Simmons (AKA “The Demon” AKA “Dr. Love” AKA “God of Thunder”), the bass guitarist for the band KISS, filed a trademark application to register the “horns” hand gesture on June 9, 2017. I’ve seen quite a few articles reporting on the application, but I’m not aware of any trademark attorneys that have weighed in on the registrability of the “sign of the horns.” I’ll give it a go.

My first thought is that the gesture is “generic” and therefore unregistrable. A mark is generic if “the relevant public would understand the term” to primarily “refer to that genus of goods or services”[1]. But how does this inquiry apply to gestures, as opposed to words or designs? I’m thinking that, where a gesture is so closely associated with a genus of services (like performance of rock music), as opposed to a brand or business (like a specific band), it’s not eligible for registration. Anyone who has been to a rock concert knows that the horns gesture is the universal symbol for approving of the performance in question.Sign of the horns

If the USPTO determines the mark to be generic or descriptive, Simmons would have to prove that the gesture has “acquired distinctiveness”, but I don’t think that argument will work here. Terms that wouldn’t ordinarily be registrable because they are descriptive or generic, may, “through usage by one producer with reference to his [or her] product, acquire a special significance so that to the consuming public the word has come to mean that the product is produced by that particular manufacturer.”[2] Let us know in the comments if you think an examiner would buy the argument that the consuming public only associates the “horns” gesture with KISS.

P.S.: Ashley pointed out to me that, if the gesture has a meaning in ASL, it could be relevant in the “genericness” analysis; however, it doesn’t look like the “sign of the horns” means anything in ASL. Additionally, it occurs to me that the applied-for mark may not be identical to the typical sign of the horns. If anyone has insight into the differences between the applied-for mark and the “sign of the horns” or the ASL significance of the “sign of the horns”, please jump in and let me know.

by Alex Hecker

[1] In re 1800Mattress.com IP LLC, 586 F.3d 1359, 92 USPQ2d 1682, 1685 (Fed. Cir. 2009); H. Marvin Ginn Corp. v. Int’l Ass’n of Fire Chiefs, Inc., 782 F.2d 987, 990, 228 USPQ 528, 530 (Fed. Cir. 1986).

[2]TMEP §1212; Nims, Unfair Competition and Trademarks at §37 (1947).

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