In 2016, the EUIPO rejected an application for a figurative mark consisting of the face of a person. It was a photograph of Johannes Hendricus Maria Smit, a singer and actor known in the Netherlands and some other European countries. Smit sought to register his face as a trademark in several classes of goods and services. The EUIPO argued that the photograph lacked distinctive character, as consumers would not perceive it as a sign identifying the business origin of the goods and services applied for. The applicant filed an appeal against this decision, arguing that people’s faces possess unique and recognizable characteristics, which give them distinctive capacity. In addition, he cited precedents in which the EUIPO Board of Appeal had accepted the registration of similar trademarks.
At the second instance, the Board of Appeal referred the case to the Grand Board, considering that the Office has systematically rejected trademark applications containing human faces. This referral seeks to ensure consistency in the interpretation and application of the distinctiveness criteria in this type of trademarks.
In view of this situation, the International Trademark Association (INTA) filed an “amicus curiae” in favor of the registration of the trademark. In its brief, INTA argues that faces can function as distinctive signs and that the Grand Board’s decision will have a significant impact on future jurisprudence regarding this type of trademarks. The Grand Board will now analyze the case and must decide whether to uphold the EUIPO’s position or, on the contrary, to recognize the distinctive character of the photograph in question.
