Can a face constitute a valid trademark bis repetita?

[21/06/2021] Following the refusal of its trademark composed of a portrait photograph of a top model, issued by the Examination Division of EUIPO due to lack of distinctiveness to designate Mannequin services, Rozanne Verduin Holding BV appealed to the Board of Appeal.

The same cancelled, in a decision dated of 19 May 2021 (R378/2021-4), the refusal, considering on the contrary that this sign is distinctive on the ground that:

- the mere fact that the photograph is a faithful representation of the services applied for does not mean that it cannot be perceived as a trade mark and,

- the photograph of the face of a particular person is a unique representation enabling the relevant public to distinguish the services in question from those of a different commercial origin and, in particular, as originating from the specific person depicted.

This decision is reminiscent of that concerning the trademark composed of a portrait photograph of the applicant, Maartje Verhoef, which had also been rejected by the EUIPO's first examiner due to lack of distinctiveness and then validated by the Board of Appeal. Find here the article.