Banksy lost an EU dispute regarding one of his most famous works

One of the most famous graffiti artist in the world Banksy registered the following European trademark in classes 2, 9, 16, 18, 19, 24, 25, 27, 28, 41 and 42:

This is one of his most well-known graffiti works so far.

In 2019, the French company Full Colour filed an application for invalidity with the European Intellectual Property Office based on a claim for bad-faith application and Article 7(1)(b) and (c) EUTMR.

According to Full Colour, Banksy never has intention to use this trademark apart of his wish to monopolies the rights over the graffiti work.

The reason was that the artist doesn’t like the copyright regime as a whole, statements in that regard were been cited. So in turn he tried to use trademark protection as a substitute to the copyright one. In that way he could stay anonymous because in case of copyright lawsuits he needs to reveal his identity which has been unknown so far.

Pest Control, a company that acted on behalf of the artist in this legal proceeding, denied this allegations as not proven.

The EUIPO however, invalidated the mark. The main argument for this decision was the fact that Banksy tried to prove a trademark use opening a shop  Gross Domestic Product but after the date when the application for invalidation was filed. According to the Office, the artist has no intention to use the mark before that, which act was determined as a bad-faith.

This case is interesting due to several reasons. From one side, it shows the attempt artistic works to be protected based on trademark law which literally gives indefinite protection in contrast with the copyright one.

On the other hand, some attempt for proving trademark use can be qualified as bad-faith.

All of this requires in-depth approach and strategy when such artistic works have to be protected.

The protection by itself is not the only element of this strategy. You need to consider how the works will be used, licensed etc. Bear in mind that trademark protection covers only signs that can be perceived as a source of trade origin of the branded goods and services.

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