{"id":2277,"date":"2020-09-21T17:53:27","date_gmt":"2020-09-21T15:53:27","guid":{"rendered":"http:\/\/www.calysta.eu\/?p=2277"},"modified":"2020-09-21T17:59:09","modified_gmt":"2020-09-21T15:59:09","slug":"banksy","status":"publish","type":"post","link":"https:\/\/calysta.eu\/en\/banksy\/","title":{"rendered":"Copyright is for losers\u2026 yet it turns out to be the only IP right protecting Banksy\u2019s artwork"},"content":{"rendered":"

As a result of a recent ruling by the EUIPO Cancellation Division, street artist Banksy has lost a two-year trademark battle with \u201cFull Color Black\u201d, a company selling greeting cards, oftentimes using Banksy\u2019s artwork. The dispute revolved around a figurative EU trademark, representing Banksy\u2019s iconic graffiti painting called \u201cFlower Thrower\u201d, which first appeared on a wall in Jerusalem in 2005. The Cancellation Division declared the trademark invalid concluding that it had been filed with bad faith.<\/p>\n

read the article on RTBF.BE<\/a><\/p>\n

Bad faith<\/strong><\/p>\n

In view of the facts at hand, this decision should not come as a surprise. EU trademark law does not contain a precise legal definition of the term \u2018bad faith\u2019. However, established case-law states that bad faith exists, inter alia, when it becomes apparent from consistent indicia that the trademark application was applied for without any intention to use the trademark or with the intent to obtain an exclusive right for purposes other than those falling within the functions of a trademark, in particular the essential function of a trademark: i.e. to signal the origin of products to consumers.<\/p>\n

Although the existence of bad faith has to be proven by the cancellation applicant \u2013 and the burden of proof is rather high \u2013 it turned out that Banksy\u2019s own public statements provided ample evidence, indicating bad faith. First of all, both before and after the filing of the \u201cFlower Thrower\u201d trademark Banksy repeatedly stated his aversion towards intellectual property laws and encouraged others to \u2018steal and adapt\u2019 his work. According to a statement on Banksy\u2019s website in 2010 (3 years after the filing of the \u201cFlower Thrower\u201d trademark) he did not produce any greeting cards, print-canvases, etc. but encouraged others to take anything from his website and make their own.<\/p>\n

Moreover, by his own admission, Banksy has never even sold or intended to sell any goods or services under the \u201cFlower Thrower\u201d sign before the filling of the cancellation application in 2019. It was only after \u201cFull Color Black\u201d filed the cancellation application, that Banksy started using the \u201cFlower Thrower\u201d sign in the course of trade. However, he chose to do so in a somewhat cynical way, which would turn out to hinder his own case. He set up a pop-up store under the name \u201cGross Domestic Product<\/a>\u201d and hung out a flyer<\/a> at the front door stating \u201cThis shop has come about as a result of legal action. A greetings card company are trying to seize legal custody of the name Banksy from the artist, who has been advised the best way to prevent this is to sell his own range of branded merchandise<\/em>.\u201d In a press article<\/a> Banksy addressed the matter as follows: \u201cSometimes you go to work and it\u2019s hard to know what to paint, but <\/em><\/p>\n

for the past few months I\u2019ve been making stuff for the sole purpose of fulfilling trademark categories under EU law<\/em>\u201d. In other words, the only reason Banksy started to sell merchandise under the \u201cFlower Thrower\u201d sign was to maintain his EU trademark and to prevent \u201cFull Color Black\u201d from using the sign.<\/p>\n

This, in conjunction with Banksy\u2019s known stands on IP laws at the time the \u201cFlower Thrower\u201d trademark was applied for, clearly amounts to bad faith, according to the Cancellation Division, which concluded that it was clear that \u201cwhen [Banksy] filed the EUTM, he did not have any intention of using the sign to commercialize goods or provide services<\/em>“.<\/p>\n

This is bad news for the grafitti artist, as now all his other EU trademarks are at risk of cancellation.<\/p>\n

Copyright<\/strong><\/p>\n

Now the question remains how Banksy can protect his artwork against the commercial use by others, if not by trademark law. The obvious solution would be to claim his copyright. However, Banksy has made it very clear he does not support copyright laws with the now famous words: \u201cCopyright is for losers<\/u>\u201d. Though such humorous and a rather radical opinion definitely befits Banksy\u2019s anti-establishment views, the real reason he likes to stay far away from copyright laws is much more practical: claiming copyright would likely require an outing of whoever is behind Banksy, which would undermine his persona. Besides, claiming copyright on a graffiti painting you made on someone\u2019s private property without prior consent, of course comes with a whole other set of legal challenges.<\/p>\n

To be continued<\/strong><\/p>\n

As Banksy can still appeal the Cancellation Division\u2019s decision to invalidate the \u201cFlower Thrower\u201d trademark, it is unclear how this legal battle will continue. However, one thing is certain: this decision will not have changed Banksy\u2019s unfavorable views towards IP law.<\/p>\n

 <\/p>\n

 <\/p>\n

 <\/p>\n","protected":false},"excerpt":{"rendered":"

As a result of a recent ruling by the EUIPO Cancellation Division, street artist Banksy has lost a two-year trademark battle with \u201cFull Color Black\u201d, a company selling greeting cards, oftentimes using Banksy\u2019s artwork. The dispute revolved around a figurative EU trademark, representing Banksy\u2019s iconic graffiti painting called \u201cFlower Thrower\u201d, which first appeared on a […]<\/p>\n","protected":false},"author":15,"featured_media":2273,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":[],"categories":[131,93],"tags":[253,228,147,128],"acf":[],"_links":{"self":[{"href":"https:\/\/calysta.eu\/en\/wp-json\/wp\/v2\/posts\/2277\/"}],"collection":[{"href":"https:\/\/calysta.eu\/en\/wp-json\/wp\/v2\/posts\/"}],"about":[{"href":"https:\/\/calysta.eu\/en\/wp-json\/wp\/v2\/types\/post\/"}],"author":[{"embeddable":true,"href":"https:\/\/calysta.eu\/en\/wp-json\/wp\/v2\/users\/15\/"}],"replies":[{"embeddable":true,"href":"https:\/\/calysta.eu\/en\/wp-json\/wp\/v2\/comments\/?post=2277"}],"version-history":[{"count":2,"href":"https:\/\/calysta.eu\/en\/wp-json\/wp\/v2\/posts\/2277\/revisions\/"}],"predecessor-version":[{"id":2283,"href":"https:\/\/calysta.eu\/en\/wp-json\/wp\/v2\/posts\/2277\/revisions\/2283\/"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/calysta.eu\/en\/wp-json\/wp\/v2\/media\/2273\/"}],"wp:attachment":[{"href":"https:\/\/calysta.eu\/en\/wp-json\/wp\/v2\/media\/?parent=2277"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/calysta.eu\/en\/wp-json\/wp\/v2\/categories\/?post=2277"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/calysta.eu\/en\/wp-json\/wp\/v2\/tags\/?post=2277"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}