Another win for portrait trademarks24 November 2023
Portraits of models or famous people are regularly used in the fashion and beauty industry. Therefore, it is not unusual for models or famous people to have their portrait registered as a trademark for the services they provide. Such a trademark is referred to as a portrait trademark. In recent years, de Merkplaats has successfully registered portrait trademarks for various models and celebrities. However, that has not always proceeded smoothly.
In this respect, the Chamber of Appeal, the highest authority of the European Union Intellectual Property Office, has decided several times that the registration of portrait trademarks is possible.
For example, Maartje Verhoef's portrait mark was successfully registered by us in 2017. You can read more about that in this previous article.
However, applications to register a portrait trademark are still regularly refused in the first instance. Portrait trademarks are considered to be descriptive and therefore lack distinctive character. de Merkplaats does not share this opinion and thus has filed an appeal, in various cases. And successfully too. The portrait trademarks of Yasmin Wijnaldum and Rozanne Verduin were successfully registered in 2021.
The Chamber of Appeal also ruled in favour of de Merkplaats in subsequent cases. As was the case in two recent rulings dated October 30, 2023. On that day, the Chamber of Appeal decided that the portraits of Marlijn Hoek and Roos Abels could also be registered as portrait trademarks. According to the Chamber of Appeal, portrait trademarks do have their own distinctive character. A passport photo that clearly depicts a specific person with unique facial features ensures that this specific person can be distinguished from other people. After all, every person has unique facial features.
The Chamber of Appeal continues to annul the decisions of the lower institutions and has determined that portrait trademarks can indeed be registered. de Merkplaats has shared that opinion for years and it shall continue to work to have it recognised by legal decisions.
Hopefully, after this latest judgment, the lower institution of the European Trademark Office will finally change its mind, so that portrait marks can be registered in the future without the need for an appeal procedure. We cordially invite this lower institution to come on a working visit to de Merkplaats. It will save a lot of money and time for all the parties involved!
Would you also like to register your portrait as a trademark? Please contact de Merkplaats.