Graffiti artist Banksy recently opened his own homeware store in Croydon which traded for only two weeks and never actually opened its doors – all sales were made online. He did so in response to a legal dispute with greeting card company, Full Colour Black (“FCB”) in an attempt to show “use” of his EU trademark known as the “flower bomber” image.
The trademark was registered in 2014 but earlier this year, FCB filed a challenge to it on the basis that:
- Banksy freely permitted the image to be reproduced such that it no longer functions as a trademark (if it ever did); and
- Banksy never intended to use the image as a trademark and was using the registration to avoid the evidential requirements needed under copyright law.
Under EU law, if a trademark is not used within five years of being put on the register or if subsequently it has not been used for five years then third parties can seek to cancel it on the grounds of non-use. However, FCB’s lawyers argue that in fact, the opening of the ‘sham’ Croydon store strengthens their argument that Banksy is seeking to use trademark law in bad faith.
The dispute continues and is a reminder to trademark owners that unless their mark is used, then it is open to challenge.