This question is currently being heard by the Grand Board of Appeal of the European Union Intellectual Property Office (EUIPO). The case under consideration concerns whether a realistic representation of a human face can serve as a trade mark, i.e. a sign indicating the commercial origin of goods or services.

At the heart of the dispute is the application by Dutch singer and TV presenter Jan Smit (born Johannes Hendricus Maria Smit) to register a photograph of his face as a European Union trade mark. The EUIPO refused registration on the grounds that consumers would perceive such an image as a decorative or advertising element rather than an indication of origin. The question has now reached the EUIPO Grand Board to clarify under what conditions a human face could still be registrable as a trade mark.

There are also examples in international practice where the image of a human face has been registered as a trade mark. For example, the image of Nelson Mandela’s face has been registered in South Africa, and the images of both Jan Smit and footballer Cole Palmer have been registered as trademarks in the UK.

Such registrations can give an individual greater control over the commercial use of their image – for example, enabling licensing agreements, protecting the use of the image in the designation of goods and services, and also helping to respond to the risk of digital manipulation and deepfakes.
The decision of the EUIPO Grand Chamber may therefore provide important guidance on the conditions under which a human face can function as a trademark in the European Union.