The anonymous street artist Banksy’s recent move to open a pop-up shop in Croydon in response to a trade mark dispute brings to light how Banksy’s motivations may have led to him losing his ability to claim trade mark rights in his art work.
Banksy’s tag line is that “copyright is for losers”. For a long period of time you could download images of the artworks directly from his website and reproduce them. There is a massive trade in unauthorised merchandise bearing his artworks.
It is only recently that he has decided to take any action for the use of his name or images. These cases have been largely limited to actions against organisers of art exhibitions of his work, on the basis that these exhibitions do not accord with his artistic vision of how his works should be presented.
In order to increase his ability to challenge this, he has sought to register a number of his art works as trade marks which cover all types of products.
This helps him in that if he needs to act, his company Pest Control Office Limited can rely upon the trade marks, whereas if he were to rely upon copyright, then he would need to prove who created the work. Proving who created the work would potentially destroy his anonymity, a price he seems unwilling to pay.
The unintended consequence of Banksy registering his art works as trade marks, however, is that he could obtain perpetual rights in his art works where he would otherwise only have a time-limited right under copyright law.
According to public statements by Banksy’s lawyer, the pop-up was conceived to defeat a claim that Banksy had not used the mark, and to prevent Banksy’s rights to his name being “transferred” to somebody else.
Keystone Law is representing card company Full Colour Black which produces a line of cards with these images upon them. They have applied to cancel one of these registrations on the basis that the particular work no longer functions as a trade mark as the people seeing products bearing the image would not assume that they were endorsed by Banksy in light of his approach to his work.
The company has also argued that Banksy has applied to register the mark in bad faith since there was a secondary purpose to his registration and because he knew that there was an existing trade using these images with his knowledge.
This case will certainly raise some interesting points but for now we are awaiting Banksy’s evidence, and we shall see who the evidence comes from – maybe Banksy himself!