Banksy and Trade marks
Last year the European Intellectual Property Office (EUIPO) cancelled a European trademark registration in relation to Banksy’s artwork called Flower Thrower, one of his most famous pieces. This was a result of a challenge by Full Colour Black Limited, a greetings card company specialising in street art images.
Recently another trade mark owned by Banksy was declared invalid due to another challenge.
This time, Full Colour Black Limited argued that Banksy’s ‘Laugh Now’ trade mark lacked distinctive character and should not have been registered in the first place.
The Monkey Sign
‘Laugh Now’ was the artwork originally commissioned by a nightclub in Brighton in 2002 and produced by Banksy. The image was a monkey with a sandwich board hanging around its neck which read: ‘Laugh now, but one day we’ll be in charge’. In 2018 an application was made to, register the sign ‘Laugh Now’ as a trade mark which depicted the monkey with a blank sign around its neck.
Full Colour Black Limited challenged the trade mark arguing that:
- the image had already been used by third parties on merchandise and posters and that as Banksy had made no use of it on any of these products it should not have been registered;
- it had already been used in a public place back in 2002, where it could be photographed and therefore reproduced by members of the public;
- As Banksy maintains anonymity and does not disclose his identity in relation to his artwork he should not be allowed to claim copyright for his artwork as the author cannot be identified;
- Banksy had said in his own 2006 book, ‘Wall and Piece’ that: “copyright is for losers” and had permitted members of the public to publish his work and even provided high-resolution versions of his work on his website and invited the public to download them to produce their own items.
Therefore, Full Colour Black argued that this meant the trade mark should not have been registered in the first place.
Pest Control Office, acting for Banksy, challenged these arguments by saying that the fact Banksy allows members of the public to photograph and reproduce his artwork should not impact on his right to protect his intellectual property.
They also argued that Banksy’s view as mentioned in his book should be excluded as it should not deter him from being able to enjoy the benefits of intellectual property protection in the same way as anyone else. Banksy should be free to enjoy the same freedom of expression as everyone else which includes the right to change one’s mind.
The EUIPO decided in favour of the challenger, Full Colour Black – they decided that the initial trade mark registration was invalid.
There are currently four more actions by Full Colour Black against Banksy’s other trade marks and it will be interesting to see how Banksy will defend these claims.
It serves as an important reminder to brand owners to ensure that when they register their brands that they ensure that they do intend to properly use the trade mark.