How can you claim that a truly original idea was yours, if you don’t have a face or a name? That’s a question the European Union Intellectual Property Office (EUIPO) found themselves dealing with when one of Banksy’s trademarks was challenged by a greeting card company called Full Colour Black.
Banksy’s famous image of a protestor throwing a bouquet of flowers is as iconic as it has been problematic of late. Most artists normally rely on either copyright or trademarks to protect their creative output. However, unlike other artists, Banksy’s reputation is based as much on his fabled anonymity as his artwork - he cannot litigate on the basis of copyright because he would have to identify himself in the court documents: anonymity is not an option. Therefore, he was left with only one option: Banksy was forced to register trademarks to protect his rights.
Use it or lose it
There’s only one problem with trademarks: they’re issued on a “use-it-or-lose it” basis. Until 2019 Banksy wasn’t using his registered trademarks for the classes of goods that they were in place to protect. When he got wind of the pending litigation he opened a shop called Gross Domestic Product, which sold impractical homeware versions of his work. Whilst not a “poetic” reason to make art, in Banksy’s words, it was a necessary endeavour to attempt to protect the position.
Unfortunately, it was patently obvious that Banksy was engaging in malicious compliance to meet the legal requirements. The shop never opened its doors and was based in a disused carpet shop. All sales were online, and it was made clear in public statements from Banksy’s team that his sole aim was to meet the criteria.
EUIPO underwhelmed by Banksy’s interpretation of trademark law
However, Banksy’s tick-box approach to trademarks did not wash with the EUIPO: they cancelled his trademark and commented that his tactics were "inconsistent with honest practices". The panel stated that: “his intention was not to use the mark as a trademark to commercialise goods ... but only to circumnavigate the law.”
Full Colour Black’s legal team also made the following comments:
“The fact that Banksy (and his lawyer) came out in the press to say the pop-up shop was intended to allow him to create items to fulfil the need to prove trademark use shot him in the foot. It underlines that you need to be very careful about what you say to the press – without the statement, it would have been mere conjecture that he would never use the mark and had no intent to; having him admit it was the final nail in the coffin.”
It is slightly ironic that the advice Banksy thought would benefit him was his undoing in this case. Perhaps even more ironically, Banksy’s famous comment that “copyright is for losers” has come back to haunt him. Either Banksy has to sacrifice his anonymity to make a copyright claim, or he must challenge the decision through an appeal. However, it seems highly unlikely that a court would offer him the benefit of the doubt given the facts in this case. That said, it seems even more unlikely that Banksy would identify himself. For now, we are in intellectual property limbo, waiting to see if any other of Banksy’s trademarks are challenged.