Face in the crowd

In its December 19, 2023 decision, EUIPO says it refuses the mark because it is nothing more than a “natural representation of a man’s head/face’. And that ordinary face, according to EUIPO, lacks a crucial characteristic of a trademark: distinctiveness. That might have been different if Smit’s head had had a special or distinctive feature. EUIPO cites as examples Barbra Streisand with her distinctive nose and Donald Trump’s interesting haircut. However, Smit’s head “shows no special features in terms of eyes, nose, mouth, ears or hair,” according to EUIPO. It is a “face in the crowd”.

Jan Smit
European trademark filing No. 14711907: no distinctive head


Yes, but I am very well known, Smit objected. Surely that makes my face as a brand distinctive? If so, prove it, replied EUIPO. And remember Mr. Smit, you have applied for a European registration. That means that you have to prove your distinctiveness as a trademark throughout the European Union.

Famous Dutchman

Of course, that was a bridge too far for Smit. According to EUIPO, the person Jan Smit can, however, be considered ‘a very famous Dutchman’. ‘Jan Smit belongs as such to the cultural heritage,’ according to the European trademark office. So! Put that one in your pocket Mr. Smit! However, European trademark protection does not come with it, because according to EUIPO Smit is hardly known in the rest of Europe. In any case, the lion’s share of the 500 million Europeans will not see a trademark in Smit’s face.

Barbara Streisand Donald Trump
Nose or hairstyle can make head distinctive?

Bad news for Mr. Smit?

So unfortunately, Smit doesn’t get trademark protection for his face. But how bad is that? Just apart from this case, the question in general is what is the point of registering a famous faces as a trademark? Most countries, under designations such as portrait rights, image rights, or personality rights, offer protection against misuse of famous faces. You don’t need a trademark registration for that. Sure, you can come up with some more theoretical benefits of such a trademark registration, but even without registration, Smit is well covered and can enter into fine commercial contracts with manufacturers of pillowcases, diaries or lingerie. After all, world stars like Messi and Ronaldo have also been doing it for years with some success without a portrait trademark.

Long waiting period

What is striking is that the application for registration dates back almost 8 years (2015). Why EUIPO pronounced its refusal only now is unclear. It also immediately exposes a vulnerability of a portrait mark: in the 2015 mark we see a young, sleek Mr. Smit. Put that next to the current Smit, quite a bit has changed. Logical, as the years naturally start to count a bit with Smit as well. But are we still talking about the same brand?

Jan Smit
Is this still the same brand?

Seven lower chins

And what about that comment by EUIPO that a head with a distinctive feature, such as Trump’s haircut, may well give distinctive character to a face and make it registrable. Do I understand correctly that if Jan had extremely long earlobes, seven lower chins or giant rabbit teeth, his face might have been sufficiently distinctive for a spot in the trademark register? Well, so that’s really just bad luck for Mr. Smit.

Bas Kist

This article was published on Jan. 4, 2024 at Adformatie

Image of DjurvinH (CC BY-SA 4.0) via Wikimedia Commons.

Bas Kist is mede-oprichter van Merkenbureau Chiever. Hij schrijft regelmatig artikelen over merken- en auteursrecht in de Volkskrant en Adformatie. Daarnaast is hij docent bij de European Institute for Brand management EURIB.