In August, the Dismaland "bemusement" park opened its doors in Weston-super-Mare. The brainchild of the street artist Banksy, the venture, which had a run of just five weeks, parodied the famous Disneyland theme parks. The attractions were Disney take-offs – there was a "dismalised" version of Disney's castle, for example, and the park features characters resembling Disney favourites but in compromising positions – but also similar is the logo, which employs the Disney font and can be seen here.
An application for registration of the mark as a Community trade mark has been filed with the Office for Harmonisation in the Internal Market. It is not clear whether Disney will oppose the application and whether, if it does so, such opposition would be successful.
Last year saw the introduction of a parody exception into UK copyright so that an act that would otherwise constitute copyright infringement would not be infringement where it is parody. (We have written before on the parody exception.) To benefit from the parody exception, however, there must be "fair dealing" and it is arguable that the very fact of the trade mark application militates against fair dealing.
With trade marks, the central question when determining whether one trade mark is infringing the rights of another is whether there is a likelihood of confusion on the part of consumers as to the origin of the goods or services. In other words, in this case, would the public believe that the experience being offered by Banksy was actually being provided by Disney. This seems unlikely. The tenor of Dismaland – with its focus on the dismal – is decidedly different from the uplifting, "feel good" experience that Disney claims to promote. There is also a disclaimer in the Dismaland small print: "The following are strictly prohibited in the park – spray paint, marker pens, knives and legal representatives of the Walt Disney Corporation".
For its part, Disney could argue that Banksy is riding on the coattails of its trade marks and is gaining an unfair advantage from doing so. Banksy might justifiably argue that the primary rationale for Dismaland is artistic but the public are charged for ticket prices so there is at least some commercial aspect to it. Whilst the show only ran for five weeks a Community trade mark application may last a lot longer and Disney may be concerned that the registration of the DISMALAND mark may affect its own brand. On that basis, it is probably more likely than not that Disney will oppose the registration.
From the point of view of trade mark practitioners, it is to be hoped it does so as it would be fascinating to watch Dismaland v Disney unfold.