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Banksy’s dilemma: intellectual property or art?

“This secret identity is proving to be a costly affair for Banksy, as more and more cancellation requests are filed against his trademarks, also risking any future registrations, and copyright protection poses a challenge to his personality. artistic.”

LOS ANGELES, USA – OCTOBER 17: Banksy graffiti on a wall on October 17, 2011 in Los Angeles.

The struggles most artists endure include creative blockages and economic hardship; however, British artist Banksy seems unaffected by either. His street art is celebrated worldwide for its anti-authoritarian tone and highly secretive personal identity. Recently, he even ventured into Non-fungible tokens.

But unwittingly, and rather humorously, Banksy faces a different kind of dilemma in terms of revealing his openly confidential identity or losing exclusive rights to his works. This scenario presents a case study to explore the overlap of intellectual property rights (in the case of Banksy, copyright and trademark law) and the legality of graffiti art. It also sheds light on the rules surrounding invalidity and revocation of a registered trademark in the European Union (EU).

Banksy fever

Banksy is not just an artist; it looks more like a statement, and sometimes also like a verb. He made a documentary, “Exit through the Gift Shop”, in 2010 to shed some light behind the scenes of drawing on a wall in public view without permission. This type of street art is generally characterized as graffiti art. The documentary was nominated for an Oscar. This is the power of Banksy. His work can be identified almost instantly when spotted on any street corner in the world. He is truly a cosmopolitan artist, Reading for Palestineeven her shredded job gets auctioned off for millions. And the the authorities cannot deny this fever That is. They trust Banksy’s art and fame to boost tourism and have checks and balances in place to maintain the sanctity of his temple (illegal work often stencilled). Moreover, the identity of the man is as clandestine as the question of Google’s algorithm. While there is some guessesit is generally believed that only certain people who work in the Bureau of Pest Control Limitedthe company dedicated to authenticating all things Banksy, can confirm his true identity.

In light of his fame, one wonders how an artist with what is likely a sizable legal team ends up losing control of at least six of its brands in just two years.

Protect… or not?

An artist has an indisputable link with his creation and it is natural to seek protection against its unauthorized use. Banksy, however, is a harsh critic of any traditional IP protection, because he believes in creating art for all and always kept (or at least try) its estrangement from commercial production and art galleries. A quick view of the Pest Control website reveals that it is open to the non-commercial use of any of its creative works by any of its admirers. But as he witnessed an increase in the commercial use of his work in galleries, auction houses and on merchandise such as t-shirts, mugs, bags and stationery, he’s seemingly come to terms with the fact that in order to keep his work accessible to everyone, he needs to knock on the doors of property offices intellectual in the world. Thus, as early as 2014, he resorted to filing trademark applications, and as of January 1, 2022, there were 18 trademark applications (including six canceled registrations) filed by Pest Control on behalf of Banksy in the EU.

However, Banksy’s priority of protecting his identity is causing him problems. On cancellation requests filed by greeting card company Full Color Black Limited (FCB), which sells Banksy art on its cards, the European Union Intellectual Property Office (EUIPO), Division cancellation, determined two more of his most famous works (Love is in the air/flower thrower and the monkey) to be invalid marks. During both hearings, FCB’s main argument was that Banksy had time and again made statements, either himself or through his representatives, pointing out the use of his trademarks solely for the purpose of avoid cancellation. He even created his own shop, Gross Domestic Product (GDP)in October 2019 to sell goods according to the classes (mainly 9, 16, 25, 28 and 41) in which its marks are registered.

Some say the ghost of his most famous statement “Copyright is for losers”, written in his book, “Wall and Piece”, has made a comeback, as his trademark registrations in the EU appear to be a ruse to circumvent copyright law and instead indefinite trademark protection and faster registration in countries like the United States and Australia.

To avoid confusion, the EUIPO had to clarify that making derogatory statements about a particular law was not the reason for the series of cancellations. These are the statements made publicly by him and his legal team addressing his GDP store as the “least poetic reason to make art” and solely to fulfill trademark obligations. These declarations, added to the fact that he only started to use the marks concerned a few months before the filing of the applications for cancellation, caused him to lose the battle. What hurt him the most was the open admission of this guilt in various newspaper articles and on his website.

The only option available to him at this point is to claim copyright protection, but no infringement claim can be made without disclosing his identity. His situation is unique, as he already struggles to claim copyright protection for his works due to the nature of graffiti art. For copyright protection, even under the Pest Control name, the company should disclose that ownership of the work has been transferred from the original author (i.e. Banksy) to the company. And in doing so, Banksy’s identity would be compromised, not only to maintain the enigma around his personality, but also to protect himself from possible prison time. While as an artist he is celebrated and applauded, graffiti art is not always. In many places it is still very illegal. His unknown identity plays the dual role of creating hype around his personality and protecting him from any legal action.

Invalidation vs Revocation

All of the cancellation claims against Banksy’s trademarks have been argued on similar grounds. The grounds for cancellation may be based either on invalidation for bad faith when filing the applications, or on revocation for non-use within a continuous period of five years. Under the European Trademark Regulation, Section 58 and Section 59 provide grounds for revocation and invalidation respectively.

FCB pressed for bad faith registration under section 59 instead of non-use under Section 58. Pest Control had a low probability of obtaining a favorable result under Section 58 because it had “actually” started using some (not all) of its marks for their associated products or services reasonably prior to cancellation. application was filed by FCB. The rule is that if the plaintiff had actually started using the mark three months before the cancellation request, the cancellation action will be dismissed as unfounded.

But EUIPO rejected this argument and assessed the plaintiff’s intention at the time of filing the application, coupled with Article 7(1)(b) and Article 7(1)(c), which provide absolute grounds for invalidation when the mark is devoid of any distinctive character. Banksy’s works are distinct as art on a wall, but as a mark on any merchandise under trademark law, Banksy can hardly distinguish GDP’s products from any store in the metro station of New York proudly displaying Banksy’s art on a water bottle. FCB argued that the use of Banksy’s work on their products was only ornamental and far from trademark. And because Banksy had given an open license to everyone to use his work for non-commercial purposes, he was already in many ways losing control of the distinctive element of a trademark.

The cancellations mainly focused on an assessment of Banksy’s intention to use the marks at the time of filing. The EUIPO had the burden of defining the term “bad faith”. In general, any Applicant who submits an application for ownership of a mark, in under this request itself, is confident that it will use the mark in good faith in the future. It is true that, unlike in the US, the element “proposed for use” is not scrutinized so critically in the EU. European trademark law does not impose a strict obligation on the applicant, at the time of filing the application, to prove his intentions to use the mark in the future. But, if after a continuous period of five years of registration, the mark has not been the subject of serious use without valid reason, or without the intention of maintaining healthy competition on the market, it is presumed have been filed in bad faith.

The secret problem

Graffiti was once the black sheep of the public art family (partly because no one claimed it). But many street artists now realize the responsibility to declare ownership, even though in most places graffiti is still considered vandalism, punishable by law. Banksy accepts or rejects ownership street art around the world that resembles his signature style (mostly through Pest Control), but to continue doing what he does he must maintain a confidential identity. And many artists have followed suit.

This secret identity is proving to be a costly affair for Banksy, as more and more cancellation requests are filed against his trademarks, also risking any future registrations, and copyright protection poses a challenge to his artistic personality. . Although he is reapplying and appealing for some of the canceled marks, there will be a lot of cat-and-mouse hunting going forward. The impact of these cancellations will be felt on its candidacies all over the world. But what choice does an artist like this have? In terms of the law, not much.

The decision of the EUIPO is to be expected and sets precedent for any artist who wishes to obtain perpetual protection for his works by trademark law; Banksy should be treated no differently. Most works filed on the basis of a “proposed use” are often not reviewed for bad faith at all. This decision will have a deterrent effect on them. On a personal note, however, and as an admirer of his work, I think he (and many like him) deserves at least some basic protection. But the IP options are really limited for such a unique artist.

Image Source: Depot Photos
Photograph ID: 38245251
Copyright: alex