It emerged last week that an application to register a hand-gesture as a US trade mark has been withdrawn. Most trade marks are either words or logos though a trade mark can take various forms, for example smells or shapes.
Gene Simmons, singer and bassist in legendary rock band KISS, made the application for his hand gesture known as the 'devil horns' though following much commentary, as the application generated significant publicity, the application was withdrawn. The withdrawn application can be viewed here. Various news reports observed prior use of the hand gesture – something that is likely to hinder a trade mark application because, as a result, a mark may lack distinctive character – and also noted that the gesture is known as 'I love you' in sign language. Any trade mark must have distinctive character and serve the function of indicating the origin of goods or services.
Trade mark applications or cases that involve unusual marks are likely to provide guidance as to the future conduct of similar applications by intellectual property offices or courts. Whilst it is unlikely that the application would have been successful, it would have been interesting to see how the United States Patent and Trademark Office dealt with the application, and the comments in any opinion or decision handed down by it, had it not been withdrawn.
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