EU 12 Oct 2020

EUIPO invalidates Banksy’s trademark “Flower Thrower”

Pest Control Office Ltd, the company behind the well-known street artist Banksy, applied in 2014 for trademark registration regarding Banksy’s street painting “Flower Thrower”. The street painting depicts a masked man throwing a bouquet of flowers and was originally erected on a wall in Jerusalem in 2005.

The decision to apply for trademark protection must be seen in the light of the fact that Banksy was at the time in a dispute with the greeting card manufacturer Full Color Black, which used “Flower Thrower” as a motif on their cards. Usually, artists invoke copyright protection to protect their work, but in this case, Banksy applied for and was granted trademark protection for his street painting. Full Color Black raised the matter and applied for cancellation of the trademark in March 2019, pleading bad faith. According to Full Color Black, Banksy had never intended to use the image as a trademark, but applied for trademark registration solely to avoid revealing his identity and circumventing the provisions of copyright.

The dispute received global attention when Banksy, after the lawsuit was initiated, launched his pop-up store “Gross Domestic Product”. The purpose of the store was to demonstrate use of the trademark and Banksy spoke to the media and stated “opening a store due to a legal dispute is possibly the least poetic reason ever to create art”. In accordance with the Trademarks Act, a person who has registered a trademark is obliged to use the mark within five years, otherwise there is a risk of having the registration cancelled.

In a decision of 14 September 2020, EUIPO cancelled the trademark, as it was considered to have been registered in bad faith. EUIPO went in the direction of Full Color Black’s request, implying that Banksy never intended to use the mark in relation to the goods and services for which they were registered. Banksys’ attempt to demonstrate the use of the trademark through the launch of his pop-up store was seen by EUIPO as a way of circumventing trademark law. This was because the store was opened only after the action for annulment was brought and therefore there was no honest intention to actually use the registration as a trademark.

Furthermore, EUIPO clarified that one of Banksy’s characteristics – his anonymity – was to his detriment in the case because Banksy’s choice to remain anonymous and paint graffiti on others’ property without permission, means that the question of who is the rightful owner of the graffiti work must be considered. According to EUIPO, the disputed mark was registered for the purpose of obtaining legal rights to the image, which could not be obtained through copyright, and this is not the function of the mark. Additionally, a trademark registration should not be able to be used to uphold rights that may not even exist, or at least may not exist for the person claiming to own them.

EUIPO’s decision means that works of art can be registered as figurative marks like any other, but this implies that they must also be used as trademarks. Thus, it can be concluded that ill-considered comments to the press may be particularly harmful. The fact that Banksy spoke to the press and explained the real intention of launching a pop-up store was like shooting himself in the foot. It now remains to be seen whether Banksy will appeal EUIPO’s decision.

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