It is not uncommon for people to refer to someone as having a “trade mark look”. But, could there be anything more to this than just a casual turn of phrase used to describe a person’s signature style or distinctive features?
Trade marks are defined under UK and EU law as any signs which have the capacity to be represented in a clear and precise manner, and can distinguish the goods and services of one undertaking from those of another [s. 1(1) Trade Marks Act 1994 and Article 4, EU Trade Mark Regulation 2017/1001].
It’s already clear that trade marks can take a multitude of forms, from the names of products and
logos, to 3D shapes, sounds and even smells.
A photograph of someone’s face could therefore, in principle, be registrable as a trade mark. For an application to register such a mark to succeed, however, the Registry needs to be convinced that the mark applied for possesses enough dominant and distinctive features to be memorable to consumers, and capable of actually functioning as a trade mark (i.e. act as a badge of origin).
In April 2023, a Dutch company (PS Holding B.V.) applied to register the photograph in the link below of model, Puck Schrover, as a trade mark in the EU: [EU Trade Mark Application No. 018864324].
The Application covered services in Classes 35 and 41 all related, unsurprisingly, to modelling.
The EU Intellectual Property Office (‘EUIPO’) rejected the Application on the basis that the photograph, whilst unique, did not possess any features that are not commonplace in the types of images that are used to represent or advertise modelling services. Nothing about the photograph was deemed to be striking enough to stick in the minds of relevant consumers and render the mark distinctive enough to be registrable.
Even though Puck Schrover is known around the world as a model, and the Applicant submitted
evidence attesting to this, the EUIPO was not convinced that the image applied for would properly
function as a trade mark.
An appeal has been filed by the Applicant against the EUIPO’s decision. On the basis of the chosen
image, we are doubtful that they will be able to change the Registry’s mind – but let’s wait and see.
