Mirror, mirror on the wall — Who is the most distinctive of them all?

[Marcel Pemsel]

Mirror, mirror on the wall — Who is the most distinctive of them all?

Marcel Pemsel Wednesday, April 29, 2026 - C-3/26, CJEU, CJEU reference, distinctivness, faces, Marcel Pemsel, trade marks

The question whether photorealistic portraits of people’s faces are inherently distinctive and can be registered as trade marks has been the subject of some debate (IPKat here, here and here). Now the Court of Justice of the EU (“CJEU”) gets to weigh in in a reference for a preliminary ruling from the Budapest High Court in Dr. Czirják-Nagy Ügyvédi Iroda (case C-3/26).

Background

On 12 February 2025, a Hungarian law firm applied for registration of the following figurative mark:

 

The woman depicted in this picture is a member of the applicant's law firm. The sign was filed for various goods and services in classes 9 and 45.

The application was partially refused, inter alia for “downloadable publications” and “computer software” in class 9 as well as for “legal services” in class 45. The applicant appealed the partial refusal to the Budapest High Court (the referring court).

The reference for a preliminary ruling

The referring court asked the CJEU the following three questions (shortened and rephrased):

1. Does Art. 4(1)(b) of Directive (EU) 2015/2436 (EU Trade Mark Directive, “EUTMD”) preclude the registration of trade marks consisting exclusively of the photorealistic portrait of a person?

2. In assessing the distinctive character of the portrait, are the public activity of the person depicted and his or her renown and reputation relevant criteria?

3. If the answer to question 2. is in the affirmative, can the public activity, renown or reputation of the represented person serve as a basis for trade mark registration in respect of any goods or services or only in respect of goods or services that have been created or provided by or with the personal involvement of the represented person? 

I. Reasoning regarding the first question

The referring court summarized fundamental principles of distinctiveness, including the principle established by the CJEU that, whilst the criteria for assessing distinctiveness are the same for the various categories of trade marks, the relevant public’s perception is not necessarily the same in relation to each of those categories. Therefore, it may prove more difficult to establish the distinctiveness of marks in certain categories.

The referring court notes that there are essentially two positions. One view holds that the uniqueness of the human face is sufficient to ensure distinctive character, as the sign clearly represents a specific person with unique facial features. The opposing view holds that this uniqueness alone is not sufficient to confer distinctiveness.

The referring court clearly leans towards the latter view. It observes that the human face has a limited range of shapes and colours and thus offers far fewer variations than figurative marks composed of geometric elements and colours.

The judges also put forward that, based on experience, the ability to recognise and distinguish human faces is tied to personal relationships. Out of billions of people, we only form an impression and a memory of the faces of a few thousand individuals. In commercial transactions, the consumer has no personal relationship with a person depicted on the packaging or shown in connection with services.

The referring court further mentions the concept of imperfect recollection, meaning that consumers rarely have the chance to compare trade marks side by side but need to rely on the imperfect picture they retain. Since faces might differ only in nuances, the judges question whether the vague image in one's mind is sufficient to help distinguish goods and services as to the commercial origin.

Finally, the judges argue that a face is difficult to describe, which could also speak against an inherent distinctive character.

II. Reasoning regarding the second and third questions

The referring court does not put forth arguments on the second and third questions but merely asks whether public activity and renown of the person depicted prior to the application can contribute to the sign’s distinctive character or whether this would fall within the scope of distinctiveness acquired through use under Art. 4(4) EUTMD. If renown is relevant, should registration be limited to goods or services connected to the represented person’s own activities or can it extend to any goods or services?

Comment

Here are some initial thoughts:

1. Photorealistic pictures of people are certainly registerable if they have acquired distinctiveness under Art. 4(4) EUTMD/Art. 7(3) EUTMR.

2. The more interesting question is whether they are inherently distinctive. Consumers are not used to real-life faces serving as source indicators. The examples where faces of people are perceived as such should be considered with caution. They have often acquired distinctiveness through intensive and long-standing use. Also, the pictures are often stylized. Think of Colonel Harland Sanders (Kentucky Fried Chicken) and Uncle Ben’s (now Ben’s Original):

EUTMR 000117325

EUTMR 000001496

3. Photorealistic portraits of people are often used in advertising but not as indications of origin but as brand ambassadors or simply as actors, which change over time.

The fact that, for instance, Charlize Theron, Adam Driver and Brad Pitt have lent their faces to ads for Breitling watches does not mean that consumers perceive these actors and their faces as indications of commercial origin of watches. Consumers rather understand that these people have been paid to appear in the ads to endorse the goods and that they have no other connection with the goods.

a. This, raises the question whether pictures of famous people, whom you expect to endorse brands (in particular actors, artists and sportspeople), can ever have inherent distinctiveness.

b. With respect to us mortals, the situation might be different. On the one hand, a parallel could be drawn to a person’s name. Names are considered as inherently distinctive (assuming they are not descriptive, think of “Butcher” or “Baker” for respective goods or services). The German courts even go so far to say that names are the posterchild of trade marks. If a person’s name is inherently distinctive, why not its likeness? A face is even more unique than a name. However, uniqueness is neither required nor sufficient for trade mark protection.

Further, a name of a person is perceived differently than a portrait of the same person. While consumers are used to names as an indication of origin, the same is not true for photorealistic pictures. The latter are frequently used to show a (non-famous) person that is somehow involved in the undertaking which offers the goods or services. This does not indicate the commercial origin but only informs consumers about the fact that the person has a part in the offering of the goods or services. Think about the profile pages of lawyers, where portraits are the norm rather than the exception.

4. Having said that, stylized pictures (such as Colonel Sanders above) are more likely to fulfil the origin function of a trade mark and might, depending on the circumstances, be perceived as a badge of origin.

5. The fame of a person certainly plays a role in acquired distinctiveness but should not matter in the assessment of inherent distinctiveness. The debatable tendency of the CJEU in Audi v OHIM (at para. 59) to consider acquired fame in the assessment of inherent distinctiveness should not be perpetuated.

6. The fame of a person for specific goods and services is relevant in assessing acquired distinctiveness for those specific goods and services. Outside of those goods and services there is no room for considering fame.

Let us see what the Advocate General thinks.