Invalid Trade Mark: Banksy Loses Art Battle

Banksy has lost a trade mark battle over one of his most famous artworks, following an invalid trade mark being cancelled on grounds of bad faith.

Background

In 2014, Pest Control Office Limited, the company acting on behalf of the street artist, successfully applied for an EU trade mark (‘EUTM’) for one of his well-known artworks, ‘The Flower Thrower’.

However, in March 2019, Full Colour Black Limited, a UK-based company that sells street art greeting cards often depicting artwork by Banksy, argued that the artist was not entitled to the EUTM as he had no intention to use it in trade.

The artwork, which depicts a masked protestor throwing a bouquet of flowers, appeared on a wall in Jerusalem in 2005.

As a result of the cancellation challenge, Banksy launched his own shop ‘Gross Domestic Product’ in October 2019, which featured versions of his artwork for sale. In an interview, the artist admitted that the shop was opened “for the sole purpose of fulfilling trade mark categories” in an effort to show use of the trade mark.

Decision

However, Banksy’s audacious strategy appears to have backfired as the European Union Intellectual Property Office (‘EUIPO’) have now declared the EUTM invalid because he “did not have any intention to use the EUTM in relation to the contested goods and services at the time of filing of the EUTM.”

The EUIPO said that Banksy’s decision to graffiti public property, open his “Gross Domestic Product” shop which was “inconsistent with honest practices”, and his previous expressions of disinterest in intellectual property rights (he famously claimed that “copyright is for losers”) were all relevant factors in their decision.

Banksy’s own words and those of his legal representative “unfortunately undermined” his effort to show that he had an intention to genuinely use the artwork as a trade mark, remarked the EUIPO.

Comment

The case highlights that Banksy’s entire trade mark portfolio may now be vulnerable to cancellation.

Furthermore, Banksy’s reliance on trade mark protection, as opposed to other intellectual property rights such as copyright, together with his unusual strategy to launch a shop in response to the dispute, only served to undermine his case.

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