The passport photo of a model is a valid trademark for EUIPO.

The European Union Intellectual Property Office (EUIPO) has ruled on the validity of a figurative trademark, consisting solely of a photo of a woman's face.

The photograph of the face of Maartje Verhoef, a Dutch supermodel, was the subject of a repository of brand of the European Union on October 14, 2015. This request was initially rejected.

The Board of Appeal of EUIPO subsequently admitted that it was a brand valid. Back to this sign and its course.

A face is a descriptive mark for the EUIPO examiner

In 2015, the EUIPO Examiner refuses the filing of the EU trademark n°014679351 for goods and services in 10 classes. The particularity of this brand ? It consists of a passport photo of Maartje Verhoef.

This mannequin from Veldhoven in the Netherlands is a very popular fashion model. She is the muse of Prada and H&M, among others.

The reviewer considers that:

• The request for brand does not possess any particular characteristic influencing the memory of consumers and enabling them to distinguish the products and services in question from those of competitors. The sign is therefore merely a picture presenting goods and services. Moreover, this representation is not distinguishable from other female faces, being a simple declination;
• For the public, this visual is only the portrait of a young woman and not necessarily that of Maartje Verhoef, so there is an amalgam;
• The brand directly describes the destination of the products and services, in other words: the female clientele;
• The sign refers to Class 44, including modelling services, which is represented by the photograph of the model Maartje Verhoef and therefore does not perform the essential function of the brand and is not distinctive.

This rejection decision for descriptivity has, however, been appealed.

EUIPO Board of Appeal considers a face to be a distinctive sign

On November 16, 2017, the Board of Appeal reversed the examiner's rejection decision. The Board of Appeal found that :

• The deposit of brand represents a realistic woman's face "in ordinary colours" The "realistic representation" of this dummy is also different from the appearance of the products in question;
• The brand is not descriptive. The photo represents that of a unique individual in the form of a passport photo. In the same way as a first or last name, " the representation of a person's face in the form of a passport photograph makes it possible to identify that person and thus to distinguish him or her from others". ;
• A female or male face with regard to the products and/or services concerned does not indicate to the consumer the gender of the public concerned. The Board of Appeal goes on to state that the face of Antonio Banderas dresses in perfumes for women and men ;
• The sign is therefore "that can perform the essential function of a brandThis is the distinction between goods and services for which registration is sought and those of different origin. »

In doing so, the House overturned the examiner's decision. The brand will therefore be registered soon.

This decision drew attention to marks formed by the faces of persons, and several offices have received similar applications for registration. Why such an appeal? It can be seen as an attempt to protect image rights through the rights of the brands. Cynics will speak of a monetarization of physical assets.

Be that as it may, this dummy now enjoys greater recognition in the legal sector!