Rock, paper, horns.

by Winthrop & Weinstine, P.A.
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Here is a fun exercise. Hold your hand up and make a closed fist. Raise your index finger, and now your pinky. Now look at your hand, what does this symbol mean to you? If you said “Hook ‘em Horns,” the University of Texas would love for you to participate in a survey in the coming months.

Athletes, musicians, and even probably a few of your friends have their own “trademark move.” Recently it appears that football players have moved away from celebratory touchdown dances to more controlled gestures. Aaron Rodgers has his “discount double check” move, Colin Kaepernick has his “kiss my bicep” move, and Tim Tebow has “Tebowing.” (admittedly less of a touchdown celebration than a sideline contemplation recently). Both Tim and Colin and have sought registration for their respective moves as the word marks TEBOWING, Reg. No. 4263370, and KAEPERNICKING, Serial No. 85822700 (Tebow has been discussed on our blog previously, both for his trademark and his branding potential). It should be noted that these are strictly for the wordmarks rather than the gesture itself. This brings us back to the University of Texas, who has recently filed a lawsuit over their hook ‘em horns hand symbol.

At issue in the Texas lawsuit is a hand signal that goes by a number of names. According to Texas, it means “hook ‘em horns.” Ask a baseball player and they’ll say “two down,” or “two outs.” Ask someone who has read the Satanic Bible and they’ll likely tell you it is the sign of the beast, or a satanic salute. Ask a heavy metal aficionado, and they’ll likely tell you “metal horns,” “devil horns,” or “that thing the Black Sabbath guy did for three decades.” Okay, the last one is not a likely answer, but it would be true. Ronnie Dio used the symbol so much that when he was inducted into the Hollywood RockWalk, he used the symbol as his signature.

Ronnie’s explanation was that it was a sign that his Italian grandmother used to make that she called “the evil eye,” but is also known as “the Maloik,” or the corna in the western world. The sign can be seen as a symbol to ward off or prevent evil or negative spirits. It carries a similar meaning in Buddhism and Hinduism, but is known as the Karana Mudra. Apparently some interpretations create a negative connotation with the symbol, as an attempt to inflict negative or evil spirits upon a person. This might explain the association with the Satanic Bible; also possibly baseball’s “two outs” if the gesture is directed toward the batter’s box.

My thirteen year old self would have identified the hand symbol as a metal or rock symbol, not any kind of symbol for the University of Texas. I was not aware of this alternate meaning until the early 2000s when Iowa played Texas in the Alamo bowl. The use of the hand symbol in music had become so ubiquitous that I assumed the Texas fans had coopted it as part of the widespread acceptance of the gesture in mainstream music. Even now the symbol is so popular that it has successfully cycled from edgy metal symbol, to honest use by non-metal musicians (i.e. Justin Bieber), to recognized irony. (for example, this spoof of a Phil Collins shirt).

But let’s get back to Texas. The University claims that the use of the logo on these t-shirts would create a likelihood of confusion as to the source of the t-shirts. Although Texas has federal registered trademarks for various HOOK ‘EM HORNS wordmarks, they do not appear to have any registered logos or designs for the hand symbol. The alleged infringer in the lawsuit is a man located in England who sells t-shirts and other merchandise under the company name Horns, Inc. The logo for Horn’s Inc., as seen on the alleged infringing article, is:

The case raises an interesting issue of whether a hand symbol can serve a source-identification function. My initial thought was that a hand gesture could not. Most hand gestures are likely to be descriptive in some way. With the “hook ‘em horns,” the symbol is arguably an attempt to recreate a bull’s head with horns. After reflecting a bit though, I believe that a logo could achieve some source identification function in limited circumstance. Similar to the color schemes in the Fifth Circuit’s Smack Apparel decision, I think that there is an argument for very thin protection. Certainly if the “Horn’s Inc.” t-shirts were in traditional University of Texas colors, there could be a plausible argument for likelihood of confusion. But what about the hand itself? Or a shirt with the singer of Black Sabbath making the horns? Or a poster of Justin Bieber throwing the horns? Surely nobody would misunderstand the University of Texas as the source of such goods. The ability to serve as a source identifier is further complicated when there are multiple well-known interpretations of a single symbol as it is here. Human hands have limited configurations and it would be a dangerous road to introduce anything other than thin protection. Although I have little knowledge about American Sign Language, I am sure this too could present some major complications.

In the end I would expect the case to settle without any court passing on this question. The Horns Inc. website has been completely removed and I doubt that the English proprietor has the money or the time to litigate across the Atlantic. Additionally, the court documents reveal that he may have undercut his defense when he posted on his Facebook page “To all my friends in the USA, I am looking for a distributor over the pond for my designs. I am particularly looking at Texas for my horns designs.”

Interestingly though Texas may have also harmed themselves in attempting to prove their historical use of the gesture. They included a press release regarding the 50th anniversary pep rally for the first use of the horns. The release included this statement: “As [originator Harley] Clark explains, the idea of using the hand signal at the rally was so impromptu, that he forgot to ask permission before doing it and got in some trouble with the Dean of Students. ‘The dean came up to me and said, ‘Do you realize what this means in Sicily?’ I said, ‘dean, I don’t know hardly anything, I’m 19, Clark says -with a laugh.”

Personally, I am more concerned about the implications that protection of hand gestures could mean. Would Volkswagen be able to coopt the peace sign through widespread commercial advertising? (Imagine your grandchildren asking incredulously, “You mean the Volkswagen ‘V’ used to mean peace? Why? Peace begins with a ‘P’?”) What about thumbs up, or high fives?

More importantly, does Vanilla Ice’s hand gesture infringe on the Vulcan salute?

Does the famous Breakfast Club silhouette infringe any common law rights of the Mexico City Olympians? (or maybe the image of Rocky at the top of the Philadelphia Museum of Art?)

And perhaps most terrible of all, what would be the future of rock, paper, and/or scissors? I don’t know who might claim paper or scissors, but I’m sure Chevrolet could build a good marketing campaign around rock. Let me know your thoughts, particularly if you can think of any other gestures that may have obtained a source-identification function or if you have any thoughts on the impact of American Sign Language.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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