Popular graffiti artist Banksy recently suffered the ignominy of having his registered trademark cancelled in the EU. In a David vs Goliath showdown, greeting card company, Full Colour Black, managed to cancel a trademark registered by Pest Control Office Limited, an entity which holds the reclusive artist’s trademarks.
While trademark cancellations are not uncommon occurrences, what is interesting to note is that the trademark happened to be the famous stencil and spray paint mural, ‘Rage, Flower Thrower’.
Rage, flower thrower, 2005 painted on a wall in Palestine, Jerusalem
Wait, trademark protection for wall paintings?! Those familiar with intellectual property rights protection would be quick to point out that copyright protection rather than trademark registration would be more appropriate to protect artistic works.
However, there is a method in this madness. When it comes to the enforcement of one’s copyright, one can’t do so behind the veil of anonymity as the author of the copyright work must be identified. On the other hand, any distinctive image can be registered by any person as a trademark. Considering the artist’s well-known proclivity for anonymity, registering his artwork as a trademark would seemingly appear to be a masterstroke worthy of applause as he can still prohibit any unauthorised use of his trademark protected artwork through a special purpose vehicle, hence, retaining his anonymity.
The Achilles heel in this seemingly well thought out plan is that a trademark registration can be cancelled if there is no intention to use it in good faith. And this lack of honest use was exactly what Full Colour Black relied on to apply for a cancellation of the trademark at the EU IP Office. Attempting to remedy the oversight, the mysterious artist set up a storefront in London to sell his artwork in an attempt to meet the trademark use requirement to prevent the cancellation of his trademark. In a classic case of ‘too little, too late’, this token, after-the-event usage of the trademark was not enough to prevent the cancellation of his registration as the IP Office took the view that the artist had not used the trademark in good faith. It didn’t help that the artist had shot himself in the foot by publicly announcing that the storefront and sale were merely an attempt to stave off the cancellation attempt.
While it may appear that a great injustice has been committed against the art world, or at least, an artist, the EUIPO’s decision is correct because the primary function of a trade mark is to serve as a sign to enable members of a public to identify the maker of goods or provider of service based on that sign and trademark registration is to grant owners the right to exclusive use of that trademark. To register a trademark with no intention to use it and to deny others the ability to use that trademark is considered an act done in bad faith.
Do you make artsy stuff and/or sell them on e-commerce sites? Unsure about which IPR protection to get? Why not drop us a holler? After all, we’re here to help!
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