Can anyone truly own a hand gesture?
It seems like a strange question, but it’s also one that comes up a lot in court. The Vulcan Salute from Star Trek, with the thumb extended, palm facing out, and fingers parted sharply between the ring and middle finger, is not a registered trademark. Pro wrestler Diamond Dallas Page, meanwhile, has successfully minuted the gesture of putting your thumbs and index fingers together to create a diamond-like shape within the negative space between the two hands. (Page successfully forced Jay Z to settle a lawsuit regarding the gesture, which the rapper had used to symbolize his Roc-A-Fella Records.)
More relevant to our interests, the University of Texas claims ownership of the “hook ’em” gesture, in which the pinkie and index fingers are extended, and the thumb is tucked over the middle and ring finger, which are folded into the palm. But Gene Simmons of KISS, who filed a patent recently on a hand symbol with a slight difference (Simmons curls the thumb inward, but doesn’t tuck it over his fingers), is now seeking trademark protection in federal court.
Simmons, as the Hollywood Reporter explains, has a difficult road to securing trademark protection for the act of extending your fingers in these particular directions. Simmons claims that his ownership of the gesture stems from a November tour date from his band’s 1974 “Hotter Than Hell” tour—but the hand sign appeared in other musicians’ gesticular vocabulary long before the Demon smeared on his first facepaint. The Reporter notes that John Lennon flashed the gesture on the single for the Beatles’s “Yellow Submarine” in 1966. (On the illustrated cover of the album of the same name, meanwhile, the drawing of Lennon offers a gesture more familiar to Longhorns fans.)
Whether Simmons is granted his trademark or not, only musicians who happen to be UT fans and are also confused about thumb placement are running afoul of the litigious KISS frontman—the gesture is not the “hook ’em” gesture, and its protections would only be granted for musical performance.
That’s a rather more restricted version of a trademark than the University of Texas has sought to enforce regarding the gesture. Last year, UT threatened to sue Austin’s palatial purveyor of donuts and tacos, Donut Taco Palace, for selling donuts rolled to resemble the hand symbol (with the thumb tucked, à la John Lennon, or, you know, Ricky Williams). Although the lawsuit never went to court, the bakery ceased offering the signature confection after receiving the cease-and-desist letter from the university.
All of which is, frankly, pretty weird. Trademark protections exist to ensure that consumers aren’t confused by knockoff merchandise, and that people aren’t profiting from things that rightfully belong to someone else. The idea that doing pretty simple things with your hands could be actionable, if done in a particular context, is not exactly intuitive. (Imagine explaining to an alien that you had to give money to Gene Simmons if you pointed those fingers while singing a song!) Nonetheless, the fact that the University of Texas holds a successfully-defended trademark on such a simple gesture probably helps Simmons’ case. If he fails to register the trademark, we’re sure tears are falling in the Simmons household—but should he succeed, he might want to thank UT, and shout it out loud.
