Can you trademark a hand gesture?

Looking to trademark a hand gesture? This one  is tricky. You may be able to trademark the image of a hand gesture, but likely not the gesture itself.

This information was provided by our founding attorney, Xavier Morales, Esq. 

Generally speaking, you cannot trademark a hand gesture, as it does not fit the Trademark Office's criteria for trademarkable material. A trademark refers specifically to the name, logo, or slogan associated with the branding of goods and services. A hand gesture is difficult to protect, because anyone can perform it and it is not the sort of thing that can be used to differentiate competitors in the marketplace.

However, if you create a logo for your company that features an image of a hand gesture, and if you use that logo to promote your products or services, you could then trademark the logo that includes the image of a hand gesture. This falls under the category of non-traditional trademarks, which are gaining traction in the legal domain, especially among musical artists and bands who use unique signs and gestures during personal appearances and performances to distinguish themselves.

Famous Attempts

Hand gestures are one of the more obscure items in terms of the volume of trademarks. Let's take a look at some famous examples of hand gesture trademarks.

Jay-Z / Diamond Dallas Page

This unlikely pair clashed over a "diamond" hand symbol that both have used for years, though there is fairly clear evidence that the wrestler used it before the music mogul.

The "diamond cutter" gesture, as it's known in the wrestling world, became a bone of contention between the two. "Diamond" Dallas Page had reportedly gone as far as seeking an injunction against Jay-Z, which was then apparently settled out of court. With that now out of the way, Jay-Z has pressed forward, submitting an application for the hand gesture with the United States Patent and Trademark Office (USPTO). The application was filed in Jan of 2018, and details can be viewed here.

Gene Simmons

Recently, Gene Simmons attempted to trademark the "Devil's horns" hand gesture, but withdrew the filing after just a few weeks. This attempt drew a torrent of criticism.

When asked about the backlash, Simmons responded "People got very upset — unqualified, no experience, no resume — those are the people in the peanut gallery. And so people get upset about something when they don't know the facts. Actually, you can trademark anything. And if nobody objects, I can own every breath of air you take." (Source)

It seems unlikely that Simmons would have gotten this mark approved, even if it did originate with him as he claims. But, on that front, many credit this horns hand gesture to Ronnie James Dio, demonstrating the complex domain of gesture marks and the challenges of mark protection in this area.

More Common Trademark Questions

These questions often lead to discussions about the gesture mark as a non-traditional trademark and the unique considerations it entails, including its classification as a mark in class and how it is recognized for the purposes of mark protection.

The Trademark Process

If you would like to discuss the trademarking options available to you, or are curious about using a specific hand gesture to brand your products or services, contact us today for a more in-depth evaluation and explanation. Or, you can start your trademark application online.

This process opens up the possibility for artists, especially those in the rock genre, to protect symbols and gestures that have become synonymous with their identity, thereby securing a unique place in the non-traditional trademarks category.

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Xavier Morales, Esq.

About the Author

Xavier Morales, Esq.

Mr. Morales founded his trademark law practice in January 2007 with the goal of providing intellectual property expertise to entrepreneurs and businesses around the country. Since then, he has filed more than 6,000 trademarks with the USPTO. You can learn more about Xavier here.

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