A Dutch company applied for a European Union trademark consisting of the face of the model Puck Schrover, in class 35 for services of models and photographic models for advertising or sales promotion and in class 41 for models services for recreational or entertainment purposes.

The European Union Intellectual Property Office (hereinafter EUIPO) refused the trademark application, holding that the application lacks distinctive character. Indeed, the public must be able to distinguish the goods and/or services of the application from those of other trademarks.

The EUIPO held that it is still possible to register a person’s face as a trademark as long as it clearly identifies the commercial origin of the trademark’s goods/services.

In this case, with respect to the designated classes of services in the application, it considered that the sign lacked distinctiveness since these types of services are often associated with photographs of models to represent them.

Moreover, it held that the model’s features are not distinctive, especially since she is not a well-known personality.

In its decision, the EUIPO distinguishes between uniqueness and distinctiveness. While it acknowledges the uniqueness of the model’s face, it maintains that it lacks notable distinctive elements that would be easily remembered by consumers.

The EUIPO emphasizes that “distinctive” refers to characteristics that distinguish one thing from another. Furthermore, the EUIPO clarifies that “Of course there can be faces with dominant or distinctive features such as Barbra Streisand’s nose or Donald Trump’s hair, for example. These features could obviously be taken into account in determining the distinctiveness of a face.”

However, in this case, the EUIPO notices that the face represented in the photograph lacks any specific feature that would enable the consumer to perceive it as distinctive and associate it with a commercial origin. It can be explained given the widespread use of model photographs across various industries.

According to the EUIPO, for the consumer, this face will be “a face in the crowd and not that of the model Puck Schrover”.

The EUIPO also rejects the argument on the acquisition of distinctive character through use.

This decision indicates that while it is possible to register a face as a trademark, as other decisions have admitted, it must be distinctive with respect to the goods and services concerned.