Can the heavy metal hand gesture be a trademark?

The sign of horns is a well-known hand gesture that has had many different meanings in various cultures over the years. According to Wikipedia, it means the rejuvenation of the body in yoga. It symbolises the lion in India, and can be found in statues of the Buddha throughout the world; in some countries, however, such as Brazil and Mexico, it is used as an insult.

Perhaps the best-known contemporary manifestation of this gesture is its use at heavy metal concerts. The rock band KISS even made an unsuccessful attempt to register it as a trademark in the United States.

The symbol was recently filed to the European Trademarks Office by a German company as a trademark for financial services and services related to the construction industry. The application was rejected by the Office, which was of the opinion that the relevant public regarded the design as an emoticon representing the ‘I love you’ gesture. As an emoticon, it can have no trademark function and can therefore not be used to distinguish either a product or a service.

The applicant argued that their logo was neither an emoticon (which is usually a pictogram of a head) nor a gesture, claiming that it can have different meanings or no meaning at all, and is not generally known as ‘I love you’.

In response, the European Trademarks Office conceded that the image is an emoji rather than an emoticon, but stuck to its original opinion that it is too banal, and lacks the distinctiveness necessary to be perceived as a trademark.

The applicant has filed an appeal. To be continued.......