Faces as trademarks: distinctive character with variable geometry?

[10/10/2023]

On 15 September 2023, the EUIPO refused, for lack of distinctive character, an application to register a European Union trademark consisting solely of a photo of the model Puck Schrover and designating modelling services.

The examiner indeed considered that the model's face was not sufficiently known by the relevant public and that it did not possess any particular feature enabling to distinguish the goods and services in question from those of competitors.

However, as we mentioned in our post of June 21, 2021, the trademark consisting of the portrait of the model Maartje Verhoef, which had also been rejected for lack of distinctive character during the examination phase, was then validated by the EUIPO's Board of Appeal. The Board of Appeal had indeed considered that the representation of a face in the form of an identity photograph allows to identify a person from others. According to the Board, this image therefore fulfilled the essential function of a trademark, namely to distinguish the applicant's goods and services from those of other undertakings.

The 15 September decision is likely to be appealed. It will be interesting to see whether the Board adopts the same position or not.