Can Gene Simmons Actually Trademark the ‘Metal Horns’? A Historic and Legal Perspective

In its 44 years as a band, Kiss’ ongoing onslaught of merchandise has included everything from caskets to condoms, but band bassist and co-founder Gene Simmons’ June 9 attempt to trademark rock and roll’s iconic “metal horns” hand gesture is a bridge too far for musicians and fans who believe the late singer Ronnie James Dio — among others — can lay claim to the ubiquitous gesture.

Ironically, Simmons’ version is actually “I love you” in American Sign Language, with the thumb extended, rather than the thumb holding two middle fingers close to the palm as popularized by Dio and used by everyone from rock stars to chefs as a salute of musical inclusiveness and triumph since the ‘70s. Simmons paid $275 to the United States Patent and Trademark Office, seeking to use the hand signal symbol for “Entertainment, namely, live performances by a musical artist; personal appearances by a musical artist.”

Variety’s questions to Simmons’ attorney regarding the musician’s intent — the “I love you” gesture versus the clearly different “metal horns” salute — had not been answered by press time.
The thumb-closed version is also identical to the Hook ’em Horns, the slogan and hand signal of The University of Texas at Austin, whose mascot is a Texas Longhorn. In that context, the gesture has been used by George W. Bush — along with millions of sports fans for numerous teams. Hardcore metal fans liken the symbol to resembling “devil horns,” while another hand symbol is used by the Japanese group Babymetal; theirs is meant to invoke and mimic their personal deity, the “Fox God.”

The closed-thumb version’s use in music has a well-documented history, though Simmons’ version may be different. Dio — nee Padavona, who died in 2010 and was a solo artist as well as lead singer of Rainbow, Elf and Black Sabbath — addressed his use of the gesture many times. As he explained in a 1990s interview with this writer, “I’m of Italian extraction; my grandmother and grandfather on both my mother’s and father’s side came to America from Italy, and they had superstitions.” As a child, he’d walk down the street with his grandmother, and “she would see someone and [make the devil’s horns]. I learned it was called the malocchio. Someone was giving us the evil eye, so [with the horns, my grandmother] was giving us protection from the evil eye. So [did I] invent it? No, but [did I] perfect it and make it important? Yes–because I did it so much, especially within the confines of Sabbath,” he explained.

“Because I’ve been lucky enough to have done it so much, it’s been more equated with me than anyone else,” he concluded, “although Gene Simmons will tell you he invented it — but then again, Gene invented breathing and shoes.”

Simmons, who submitted an onstage photo of him making the “I love you symbol” in his trademark application, told this writer during a ‘90s interview, “What I started [before Dio] involved the thumb outstretched. 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. Later, I was told it meant, “I love you” in sign language.”

Beatles co-founder John Lennon uses the “devil horns” in promo photo in 1967 and in a cartoon image on the 1969 album Yellow Submarine, whose cover artwork was a drawing of the Beatles created by Heinz Edelman. Scholars have surmised that Lennon was supposed to be making the “love” sign, but the thumb was not extended in the illustration.

Megadeth frontman Dave Mustaine has his own, fairly scientific take on the gesture, telling this writer, “Most people do it wrong, and I’m not talking about outstretching the thumb. For the real devil’s horns, when used as a Satanic symbol, you don’t close your middle two fingers and wrap your thumb around them. You leave the middle two fingers outstretched and place the thumb between them so it resembles the snout of a jackal.”

As fans and musicians cry foul over Simmons’ appropriation of the gesture — even though he’s specifically applied to trademark the “I love you” version — it’s essentially seen as an attempt by the publicity hungry entrepreneur to commodify musical history.

Los Angeles-based intellectual property attorney Victor Sapphire says that demonstrating that the mark acts as an identifier of a single source of entertainment services will pose a significant challenge to its viability. “Even if consumers don’t think of Gene Simmons in particular, do they associate the gesture with a single source of entertainment services in the nature of live performances and personal appearances?” posited Sapphire. “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.”

Carl Canedy, drummer of The Rods, told Variety, “Gene is looking to trademark a three-fingered symbol. The fans I’ve spoken to seem to be responding with a one-fingered salute.”

Biff Byford of the veteran British metal band Saxon concludes that the index finger and pinky raised with the thumb tucked in is “the rock and roll, metal salute. It’s lost all the devil connotations. It’s just a great salute, isn’t it?” he told Variety. “We’re all here, we all like one music. Even models on the catwalk, they’ll give the sign — rock and roll!”

 

 

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