Rock Band KISS Gets in Trademark Dispute with Cover Band
Just days after front man Gene Simmons declared the band Kiss officially retired, the owner of the band’s intellectual property (IP) rights filed a trademark opposition against a small music group attempting to register the WICKED KISS trademark. The band at the center of the issue, Wicked Kiss, sought to register its stage name with the USPTO in 2020. If the “KISS Army” prevails, though, they may have to change their tune.
KISS vs Wicked Kiss
Since landing their first record deal in 1973, the band Kiss experienced constant popularity. Their first trademark application happened just one year later. Fast-forward over 45 years into the future, and the owner of the band’s IP rights (i.e., Kiss Catalog, Ltd.) requested that the Trademark Trial and Appeal Board (TTAB) reject a similar registration.
“Wicked Kiss” calls itself a “female-driven rock band delivering in-ur-face [sic], 70s/80s inspired original and cover music.” The band had less than 300 Instagram followers when Kiss Catalog filed the trademark opposition, and although their initial application has a filing date back in October 2020, their Instagram page shows their first post in January 2021.
The filing against Wicked Kiss lists various grounds for opposition. These include:
- Likelihood of confusion.
- Dilution by blurring.
- Dilution by tarnishment.
- False suggestion of a connection.
In addition to the many Kiss trademarks filed with the USPTO, the opposition notice states that the band has acquired extensive common law trademark rights through their continuous use of the identifier “Kiss.” And since Wicked Kiss is certainly within the same channels of trade (e.g., live music, band merchandise), it seems like the KISS Army has a case to make.
Of course, there are several facts to consider.
How Far Does the KISS Trademark Go?
Gene Simmons recognizes the value of trademark rights. He even went as far as trying to register the term “trophy wife” and the “devil horns” hand gesture that became synonymous with rock music over the years. In the opposition notice, Kiss Catalog says Wicked Kiss “contains the entirety of the Opposer’s KISS Mark. Applicant merely adds the term ‘WICKED’.”
While this is technically true, the question of whether consumers would confuse the two bands is paramount. For a likelihood of confusion claim to prevail, it’s necessary to show that the public might think Wicked Kiss is somehow related to Kiss. This is one of the major arguments that the TTAB is likely to hear if the case makes it to a final decision.
As for the other grounds listed by Kiss catalog, trademark dilution would simply signify that the famous term “Kiss” would lose its uniqueness if “Wicked Kiss” received trademark rights.
What Happens Next?
Whether or not the band Kiss can claim rights over the word “kiss” when it comes to all band names is up for debate. The fact that Wicked Kiss states that they cover songs from the 70s and 80s – decades when Kiss reached heightened levels of fame – likely doesn’t help their case. It’s probably also not helpful that they’ve used hashtags with the legendary band’s name on social media as well.
Regardless of these facts, there’s no guarantee that the “KISS Army” will prevail. After all, countless bands feature similar terms in their names (e.g., The Who vs The Guess Who). The level of fame that Kiss accrued over the years, though, could play a big role in the Trademark Trial and Appeal Board case. The TTAB will also consider the commercial impression of both band names.
Of course, this assumes that the case makes it that far. Wicked Kiss may choose to drop their application in its entirety. After the filing from Kiss Catalog, the TTAB set a date of August 8, 2021 for Wicked Kiss to respond.
At that point, we’ll better be able to tell if the battle of the KISS Army versus the “in-ur-face” [sic] cover band will go anywhere.
