Copyright and anonymity: Banksy tries trademarks

‘Copyright is for losers’, according to street artist Banksy. Unsurprisingly, this has led to several of his artworks being printed on all manner of goods which are then sold by numerous companies. Among them is the London-based company Full Colour Black, which produces postcards. Trade mark rights, apparently, are not for losers, because Banksy has registered several of his works as trade marks with the European Union Intellectual Property Office (EUIPO). He has done this through Pest Control Office Ltd., to retain his anonymity.

His aim is to prevent the spread and sale of his works on various products. He chose trade marks over copyright because relying on copyright would require him to identify himself as the author of the works. Since he works anonymously, which adds to both his appeal and his fame, he does not wish to do so.

Full Colour Black has contested one of these registrations. The company sells postcards depicting Banksy’s Flower Thrower, originally a mural in Jerusalem.

The artist does not sell any goods bearing the sign, which was registered for eleven categories of goods and services. Full Colour Black argues that Banksy is acting in bad faith, because the sign was registered purely to circumvent copyright law, and that the registration should therefore be declared invalid.

At the last minute, this prompted Banksy to launch an online shop offering some goods bearing the sign for sale. The site said in so many words that this was being done solely because a postcard company was trying to appropriate Banksy’s name.

That did not impress the EUIPO. It held that Banksy had shown, through both his statements and his actions, that he was acting in bad faith in applying for the trade mark. There was never any intention to use the sign to participate in the market; it was applied for solely to prevent others from using it. The EUIPO therefore concluded that the registration ran counter to the purpose of trade mark law.

That purpose is to enable consumers to identify the commercial origin of a good or service and to distinguish it from comparable goods and services from other undertakings. It is not to block every attempt by others to use a sign that the rightholder does not use himself. The EUIPO therefore held that the application for and registration of Flower Thrower conflicted with that purpose and with honest practice in industrial and commercial matters. The registration was accordingly declared invalid under art. 59(1)(b) of the European Union Trade Mark Regulation (EUTMR). The deadline for appeal (14 November) has since passed and the decision has become final.

Banksy may think copyright is for losers, but where trade marks are concerned it seems Banksy is the one losing.