Kiss bassist Gene Simmons is trying to trademark the hand sign made by holding the thumb, index finger, and pinky up while holding the middle finger and ring finger down, sometimes known as the Sign of the Devil. His application illustrates how artists often abuse intellectual property privileges, using them not just to secure their own work but to try to curb the work of others.
The gesture that Simmons is claiming is also American Sign Language for "I love you." In a music context, a slightly different version of the gesture—with the thumb holding the middle and ring fingers down—was popularized by Black Sabbath's Ronnie James Dio before Simmons adopted it. (According to Variety, Dio said in the 1990s that he picked up the gesture from his Italian grandmother, who used it when someone would give her or her grandchild the "evil eye.") The thumb-down version of the gesture is also used by fans of the University of Texas at Austin.
Simmons argues that his gesture is substantively different. "What I started [before Dio] involved the thumb outstretched," he said in the '90s, according to Variety. "Check our first poster, in 1974. I started doing it because of comic book artist Steve Ditko, who created both Spiderman and Dr. Strange, who both used the same hand sign. Spiderman used it upside down when he shot out webbing, and Dr. Strange used it as a magic incantation. I was paying homage." Simmons said that it wasn't until later that he learned the symbol was ASL for "I love you."
Simmons' acknowledgement that his gesture was borrowed from other pieces of intellectual property, namely Spider-Man and Dr. Strange, ought to be enough to to reject his application—and should've been enough to convince him not to apply in the first place.
Intellectual property attorney Victor Sapphire told Variety that Simmons would have a tough time defending his application because the gesture would have to be associated with a "single source of entertainment services." That isn't the case for this gesture, which has many uses.
"While there certainly may be a route to registration for this mark, this question may ultimately render the mark unenforceable, in which case the process of applying for registration will appear to have functioned as either another of Mr. Simmons' brilliant publicity-generating moves, a vanity exercise, or perhaps a bit of both," Sapphire said.
Simmons' application ought to spark a conversation on the need for IP and trademark reform. Complex laws, often promoted by vested interests, do more to thwart the progress of arts than promote them. Spider-Man and Dr. Strange could tell you a bit about that, too: Marvel shares a trademark on the term "superhero" and has tried to use it to suppress other comics work.
Bonus video: "How Should Libertarians Think About Intellectual Property?"