The mysterious street artist Banksy has lost the trademark rights to his famous “Flower Bomber” motif on which a masked man throws a bouquet of flowers, also known as “Love is in The Air”. The decision to cancel the trademark rights was confirmed to the dpa by the EU’s competent intellectual property authority on Thursday. Now the rest of his portfolio is in danger as well.
In a statement, the reason given for the decision is that Banksy registered the trademark without the intention of ever using it. The panel stated that Banksy’s audacious move to launch a shop in response to the dispute “undermined” the case, while the attorney representing the company behind the cancellation says the decision means “all of Banksy’s trademarks are at risk”. A further reason given for the decision is that Banksy has kept his identity secret and has also repeatedly spoken out strongly against copyright in the past.
Gross Domestic Product
Banksy, represented by Pest Control Office Ltd. , had successfully registered the motif as a trademark in the EU in 2014. The British company Full Colour Black Ltd. had in 2019 applied for the cancellation of the trademark, as it prints and distributes images of Banksy’s motifs on postcards, among other things. Full Colour Black claimed that Banksy filed the trademark in bad faith and that it is also non-distinctive. The dispute gained widespread attention after Banksy launched a shop in Croydon, London, entitled Gross Domestic Product, in an effort to show use of the trademark. At the time, Banksy said that opening a shop because of a legal dispute “is possibly the least poetic reason to ever make some art”, adding: “A greetings card company is contesting the trademark I hold to my art and attempting to take custody of my name so they can sell their fake Banksy merchandise legally.”
However, it was for nothing. The Cancellation Division ruled that the EUTM is invalid on the grounds of bad faith because Banksy did not have any intention to use the EUTM in relation to the contested goods and services at the time of filing it. In the decision, the panel was scathing in its assessment of the shop, which it described as “inconsistent with honest practices”, stating: “The use, which was only made after the initiation of the present proceedings, was identified as use to circumvent the requirements of trademark law and thus there was no intention to genuinely use the sign as a trademark. Banksy was trying to use the sign only to show that he had an intention of using the sign, but his own words and those of his legal representative, unfortunately undermined this effort.” The board did not examine the claim of non-distinctiveness.
Trademark law shall not be used to circumvent copyright
The board also made clear that one of Banksy’s defining characteristics – his anonymity – was disadvantageous to his case. As no one knows his identity, he cannot be identified as the unquestionable owner of the graffiti works. Furthermore it cannot be established without question that the artist holds any copyrights to a graffiti. The contested EUTM was filed in order for Banksy to have legal rights over the sign as he could not rely on copyright rights, but that is not a function of a trademark. Therefore, the filing of a trademark cannot be used to uphold these rights which may not exist, or at least may not exist for the person claiming to own them.
Much of Banksy’s identity is a mystery. It is known that he comes from Bristol in south-west England and came to London in the late 1990s. He made a name for himself with socio-critical and usually controversial motifs, which often appear surprisingly. His most sensational work in the last few years was a picture – sold at an auction – which at the very moment of sale shredded itself, critiquing the commercialisation of art and the insane profit that can be made on the art market.
Further, Banksy’s aversion to IP rights (he famously claimed that “copyright is for losers” in his book “Wall and Piece” published in 2005) was also used against him, with the panel noting that the artist “has used the copyright of others in some of his works”. In closing comments, the panel stated that Banksy “has [chosen] to be very vocal regarding his disdain for intellectual property rights”, but that opinion “does not annul any validly acquired rights to copyright or trademarks”.
Banksy can appeal against the decision.