EUIPO: Most Human Faces Fail Distinctiveness Test for Trademarks
The EUIPO reaffirmed in recent rulings that most human faces lack trademark distinctiveness.
Why it matters: Legal teams and in-house counsel must adjust trademark strategies, as EU trademark law rarely protects ordinary facial images. Clarity from the EUIPO sets expectations for brands considering facial marks amid growing use of biometric and likeness assets in digital commerce.
- EUIPO refused Smit (2016) and Schrover (2023) facial trademark applications for lack of distinctiveness.
- Only faces with unusual or dominant features may be eligible for registration, according to EUIPO guidance.
- INTA advocated for broader recognition, but the Grand Board maintains strict criteria.
- Legal scholarship finds persistent challenges to registering ordinary facial images as trademarks in the EU.
Recent guidance from the European Union Intellectual Property Office (EUIPO) solidifies a high bar for registering photographs of human faces as trademarks. The office’s rulings emphasize that distinctiveness—a trademark’s ability to identify the source of goods or services—requires more than an average facial image.
- In 2016, the EUIPO rejected a photo trademark application featuring Johannes Hendricus Maria Smit. The decision cited insufficient distinctive character (analysis).
- On September 15, 2023, it denied an application for a facial mark featuring Puck Schrover, stating that a standard portrait or selfie does not make a mark distinctive, even if the person is unique (decision summary).
EUIPO guidance suggests only faces with dominant or highly unusual characteristics—such as exceptionally distinctive features—may satisfy the legal threshold for distinctiveness. Generic or typical faces, the office notes, "solely represent the appearance of a human being and are not understood as an indication of commercial origin."
The International Trademark Association (INTA) intervened, urging broader acceptance. In its amicus brief, INTA argued that faces can serve as source identifiers and called the Grand Board’s forthcoming decision "highly significant" for future trademark policy.
Nonetheless, a 2025 legal review observed that most registration attempts fail. The main obstacles: establishing that a particular human face communicates brand origin to consumers, not just personal identity.
By the numbers:
- 2 — Number of facial image trademark applications (Smit 2016, Schrover 2023) rejected by the EUIPO for lack of distinctiveness.
- 1 — Amicus brief submitted by INTA advocating broader acceptance of facial trademarks.
Yes, but: Acclaimed or highly unusual faces may still be registrable if proven to uniquely indicate commercial source.
What's next: A Grand Board decision is still pending and could further clarify EU standards for facial trademarks.