A “Face in the Crowd”
Smit’s trademark application for his face was rejected by the European Union Intellectual Property Office EUIPO at the end of 2023, on the grounds that it was not distinctive. EUIPO described his head as merely a “face in the crowd.”
Appeal
Unwilling to accept the rejection, Smit appealed the decision to EUIPO’s Board of Appeal. Recently, the Board announced that it would not handle the case itself but would instead refer it to the Grand Board of Appeal. This Grand Board, the highest decision-making body of the EUIPO, consists of nine specialized judges.
Contradictory decisions
Smit’s case has received special attention due to ongoing uncertainty at the trademark office regarding the registrability of human faces as trademarks. The office has issued conflicting decisions in recent years. While registrations for many Dutch models’ faces were rejected for lack of distinctiveness, several of these decisions were overturned on appeal in early 2023, granting the models their trademarks. However, just months later, Smit’s application was again dismissed.
Portrait Rights?
The Grand Board is now tasked with clarifying Europe’s position on this issue: Is a person’s face eligible to function as a trademark? Can you or can you not register a face as a trademark?
If Smit’s appeal is successful, he will secure the European trademark registration he seeks. However, it’s debatable whether this would offer him any significant advantage. As it stands, in Europe Smit already has legal recourse to combat unauthorized use of his image through portrait rights. Under these rights, Smit can easily address misuse of his head without needing a trademark. After all, stars like Ronaldo and Messi have managed for years without a portrait-based trademark.
Does Young Jan Resemble Older Jan?
Another intriguing aspect is that Smit originally filed the trademark application in 2015. For some reason, the registration process has been significantly delayed. As a result, the application concerns a photo of a much younger Smit. The Jan Smit of 2024 looks noticeably different—fuller and more mature, to put it politely. If someone were to use an image of the current Jan Smit in advertising without permission, it’s unclear whether the 2015 trademark would be of much use. Would consumers confuse the 2015 version of Jan Smit with the Jan Smit of 2024?
The Grand Board of Appeal is expected to issue its ruling in 2025
Bas Kist
This article was originally published in the Dutch newspaper Volkskrant
