‘Copyright is for losers’ according to street artist Banksy. Unsurprisingly, this has led to several of his artworks being printed on various articles which are then sold by numerous companies. Among them is the Londen-based company Full Colour Black, which produces postcards. Apparently, Banksy does not deem trademark rights to be for losers, as he has registered multiple of his works as a sign 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. Trademarks were chosen over copyright, as the latter protection would require him to identify himself as the creator of the works. Since he works anonymously, contributing to both his appeal and 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in bad faith as the sign was exclusively registered to circumvent copyright law and that the registration should be withdrawn.
At the last minute, this caused Banksy to launch a webshop where some goods bearing the sign were offered for sale. It was explicitly mentioned on the site that this was done solely because a postcard company was attempting to seize Bansky’s name.
The EUIPO did not like that. It argued that Banksy had shown through both his statements and actions that he was acting in bad faith in applying for trademark registration. 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. Therefore, the EUIPO concluded that the registration was contrary to the purpose of trademark law.
That purpose is to offer users the opportunity to identify the commercial origin of a good or service and to be able to distinguish it from (comparable) products and services produced by different companies. That purpose is not to thwart any attempt at using a sign, while the rightholder does not use it himself. The EUIPO thereby concludes that the application and registration of Flower Thrower are in conflict with this purpose as well as honest practices. Thus, the registration will be withdrawn on the basis of art. 59(1)(b) of the European Trademark Regulation (EUTMR). At present, the deadline for appeal (14 november) has passed and the decision has become final.
Banksy may deem copyright to be for losers, but where trademarks are concerned it seems Banksy is the one losing.
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