TRADEMARKS | The EUIPO on the registration of a human face as a trademark

Newsletter n. 89 – October 2023

TRADEMARKS

The EUIPO on the registration of a human face as a trademark

On 15 September 2023, the Examination Division of the European Intellectual Property Office rejected an application for a European trademark registration of a figurative mark that represented the well-known Dutch model Puck Schrover, since the applicant had failed to demonstrate the distinctive character or acquired distinctiveness through use of the sign. The Examination Division considered that a passport photo of a person’s face alone, even if unique, is not sufficient to grant distinctive character to the mark, since it could be a photographic representation of any woman. Moreover, the fact that the model was internationally renowned for her work in the main fashion houses does not entail distinctiveness or reputation for the trademark. This decision highlights the difficulty for applicants to demonstrate the distinctiveness of marks that depict human faces, insofar as the condition for registration is that the represented face has dominant or distinctive features, such as Barbra Streisand’s nose or Donald Trump’s hair, as the EUIPO itself noted.