A Comment on Trademarking Celebratory Gestures
by Nicholas Kanter
On America’s Got Talent, Sharon Osbourne’s signature gesture to the audience was a heart symbol shaped by her hands. Now, a counterpart from the UK is attempting to register a similar hand symbol as a trademark.
Although not well-known in the US, Gareth Bale is one of the top soccer players in the English Premier League with the team Tottenham Hotspur. (One of the top players for the US Soccer team, Clint Dempsey, also plays for Tottenham).
This year Bale earned the Professional Footballers’ Association Player of the Year award due in part to scoring 20 goals (so far) in the 2012 – 2013 season. After scoring each goal, Bale celebrates by making a heart-shaped hand gesture.
Seeking to profit from the gesture, Bale applied to register the symbol for precious metals, jewelry, leather goods, bags, clothing, footwear and other goods in the UK. A drawing of the applied-for symbol is shown below (“11” is Bale’s number).
Bale is certainly not alone in making a unique gesture/celebration after scoring for his team. In the US, for example, Aaron Rogers of the Green Bay Packers celebrates touchdowns by making a motion as if he is putting an invisible championship belt on around his waist.
However, Bale’s attempt to secure rights in his gesture through a trademark registration will likely cause other athletes and media celebrities who use hand gestures when introduced on television shows (e.g., Blake Shelton with his finger pointing on The Voice) to do the same.
Finally, because trademark rights are acquired based on using the mark on or with a particular good and/or service as a source identifier – athletes and celebrities looking to trademark particular hand gestures will first have to use the image created by the gesture to identify the source of a particular good, e.g., jewelry, clothing etc., as Bale intends to do with precious metals, footwear and bags – in order to exploit and acquire protectable rights in the symbol.
Thus, simply making a hand gesture after scoring a goal or when introduced on a television show alone will not likely create any protectable trademark rights.
Nicholas Kanter is a Trademark Litigation Attorney at our Firm. Contact him via email: firstname.lastname@example.org.