Trademark protection for faces? A comprehensive analysis on the benefits and drawbacks of trademarks and the right to facial image

Abstract

The purpose of this paper is to present a comprehensive framework for the possibility of trademark protection for human faces. In the case law of the European Union Intellectual Property Office there are a few examples of trademarks, which consist of only photorealistic human faces. Private law protects the use of images; however, the trends of recent years demonstrate that trademarks could also have a role in such protection. The author aims to analyze the similarities and differences between trademark protection and personality rights in order to determine whether trademarks for faces are necessary or not. The overarching analysis compares twelve aspects of the two ways in which the legal systems protect facial imagery, highlighting their various advantages and drawbacks. The comparison includes the following attributes: function of protection, scope of protection, territorial dimensions of protection, temporal dimensions of protection, conditions of protection, content of protection, limitations and exceptions, transferability of rights, enforcement of rights, requirement of use, termination of rights and costs.