Portraits as Trademarks: A Doctrinal and Practical Analysis of EUIPO Case Law on Facial Image Signs

Abstract

This article examines the increasingly relevant and doctrinally complex question of whether photorealistic human faces can serve as valid and protectable trademarks under European Union law. Drawing on updated empirical data, evolving EUIPO case law, and critical third-party interventions—including the amicus curiae brief submitted by INTA in the Smit case—the study interrogates the normative and institutional limits of trademark distinctiveness when applied to facial images. The research applies to doctrinal legal methodology supported by empirical observations and comparative references, with a focus on European legal sources and procedural developments. It evaluates the registrability, scope of protection, and practical enforceability of facial image trademarks in light of established principles of trademark law, including the requirement of distinctiveness, genuine use, and the limitations arising from personality rights and public interest. Particular emphasis is placed on the conceptual distinction between personal identity and commercial origin, the merger of service and sign in the context of modeling services, and the doctrinal thresholds for enhanced protection based on reputation. The findings indicate that while facial trademarks are gradually gaining acceptance, their registration raises unresolved theoretical and practical challenges that requires careful legal scrutiny and, potentially, legislative clarification to ensure coherence with the foundational objectives of trademark protection.