The Luzzatto Group | View firm profile
On 04.03.2023, the Israeli Patents, Tredamenks, and Designs Registrar decided that a trademark containing the image of Frida Kahlo should not be accepted for registration.
The Trademark applicant is an Israeli company engaged in catering services, which operates a business in the city of Eilat called “Torta Loca” that sells Mexican food. The image of the famous artist Frida Kahlo appears in the applicant’s trademark. The opponent is another Israeli company from Eilat in the Mexican food business that uses and owns the trademark “TORTA.”
Several claims were made as part of the opposition to the registration of the mark, among them the claim that the applicant made an improper and prohibited use of Frida Kahlo’s image, according to Israeli Trademark law.
The trademark requested for registration presented the image of Frida Kahlo in an illustration. At first, the applicant tried to claim that it was not Kahlo’s image and that the rights to her image had expired. Still, as part of the cross-examination, the applicant finally admitted that it was indeed the famous artist’s image.
The Trademark Registrar decided that the requested trademark, which includes the image of the artist, is not eligible for registration under the Trademark law, which states that a mark using a person’s image cannot be registered unless the consent of the person concerned has been obtained, and if he is not alive – with the permission of his successions, unless there is a reasonable reason not to seek consent.
The Registrar stated: “I did not find any factual or legal support for the applicant’s claim that the image of Frida Kahlo is in the public domain.”
As part of the decision, the Registrar reviewed the legislation and rulings on the use of a person’s image in the field of trademarks, and finally, in light of the impression of the illustration and the applicant’s admission that it is indeed the image of Frida Kahlo, the mark in question was rejected from registration, as also the other trademark that was filed, and the applicant was ordered to pay NIS 25,000 in legal fees. The opponent was represented by The Luzzatto Group, by attorneys Oren Mandler and Koby Agar.