Mirror, Mirror on the Wall — Who Is the Most Distinctive of Them All?

Key Takeaways

• CJEU questions inherent distinctiveness of photorealistic facial images.
• Public fame may aid acquired, not inherent, distinctiveness.
• Stylised portraits more likely to qualify as source identifiers.
• Faces treated like ordinary figurative marks, registration harder.
• Advocate General opinion will shape EU trademark practice for facial images.

Pulse Analysis

European trademark law has long distinguished between inherently distinctive signs and those that acquire distinctiveness through use. The current CJEU preliminary ruling tackles a novel scenario: a photorealistic portrait of a lawyer filed for software, publications and legal services. While the EU Trade Mark Directive applies uniformly, the court notes that human faces offer limited visual variation, making it difficult for consumers to associate a raw facial image with a specific commercial source without prior branding.

Legal scholars point out that fame and public activity can bolster acquired distinctiveness but should not confer inherent distinctiveness. The CJEU’s analysis echoes earlier cases such as *Audi v OHIM*, emphasizing that a celebrity’s reputation only matters where the mark has already functioned as a badge of origin for the relevant goods or services. Stylised renditions—think Colonel Sanders or Uncle Ben—are more readily perceived as brand symbols, whereas photorealistic pictures often serve as endorsement tools rather than source identifiers.

For marketers and IP practitioners, the outcome will dictate whether facial images can be protected without extensive use history. A favorable Advocate General opinion could open a pathway for companies to trademark realistic likenesses, provided they demonstrate consumer recognition. Conversely, a restrictive view would reinforce the need for stylisation or secondary meaning, shaping branding decisions across advertising, entertainment, and professional services within the EU marketplace.