Banksy's trade marks at risk as artist loses legal battle over registration of Flower Thrower mural

Posted: 22/09/2020

Banksy's trade mark portfolio could potentially be at risk as the Cancellation Division of the EU Intellectual Property Office (EUIPO) holds that Banksy's trade mark for ‘Flower Thrower’ was filed in bad faith and is therefore invalid.   

Background  

In 2014, Banksy (via an entity called Pest Control Office Limited) successfully registered an EU trade mark (EUTM) depicting his infamous artwork, which had been first sprayed on a wall in Jerusalem in 2005. The trade mark registration was subsequently challenged by a UK card company, Full Colour Black, in 2019, on the grounds that the artist never intended to use it as a trade mark and was merely trying to circumvent copyright law (which he could not rely on due to his desire to remain anonymous and potential issues regarding the legality of street art/graffiti).

This prompted the artist to create ‘Gross Domestic Product’, a pop-up store in Croydon, south London, which featured versions of Banksy’s artwork for sale. However, the artist admitted that the shop was only opened "for the sole purpose of fulfilling trademark categories”, and was not therefore genuine trade mark use aimed at creating or maintaining a market share. 

The EUIPO's ruling  

On 14 September 2020, the Cancellation Division declared Banksy’s EUTM invalid on the grounds of bad faith. It stated that Banksy, at the time of filing the trade mark application, had no intention of using the EUTM in relation to the contested goods or services. The Cancellation Division further noted that the creation of the pop-up store was "inconsistent with honest practices" and stated that it was only opened "to circumvent the requirements of trade mark law and thus there was no intention to genuinely use the sign as a trade mark."

The artist now has two months to appeal this decision. Full Colour Black has challenged the trade marks of a further six of Banksy’s works and will no doubt be greatly encouraged by this ruling.

Comment 

The (once rarely applied) doctrine of bad faith continues to evolve at the EUIPO. Banksy’s desire to remain anonymous, coupled with his overt disdain for intellectual property rights (having famously said that "copyright is for losers"), clearly didn’t do him any favours. Whether Banksy’s attitude to intellectual property rights now changes, particularly in light of the challenges facing his other EUTMs, remains to be seen – maybe the EUIPO should be paying close attention to any new murals appearing in or around Alicante!

This article has been co-written with Shamerah Theivendran, a trainee solicitor in the IP, IT and commercial team.

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