Human Written, Opinion

Banksy v. The Man

The Story

Banksy is an anonymous England-based street artist, political activist, and film director. He came on the scene in the 1990s. In recent years his work has gained much attention as street art has become mainstream.

Such mass appeal has given way to commercial opportunity. And such commercial opportunity has snowballed into unauthorized reproductions and copyright infringement claims.

Most recently, Banksy lost a two-year legal fight over the trademarking of one of his iconic artworks, Flower Thrower. The legal dispute initially began between Pest Control, the corporate body that authenticates Banksy’s artwork. And Full Colour Black, a British greeting cards company which often uses artworks by Banksy.

The Proceedings

In March 2019, Full Colour Black asked for the cancellation of Banksy’s trademark to the Flower Thrower image. They claimed that Pest Control filed the trademark in “bad faith.” Shortly thereafter Banksy opened a store named Gross Domestic Product in South London, to raise awareness of the case, stating:

“A greetings card company is contesting the trademark I hold to my art and attempting to take custody of my name so they can sell their fake Banksy merchandise legally.”

At that time, Banksy also disclosed that he was creating his own merchandise under legal advice. Noting that by doing so he would be showing that he was attempting to abide by the law which requires owners of trademarks to use their brands in the course of trade. Something Banksy had never done up to that point.

Unfortunately for Banksy, speaking out publicly about the motivations behind the store came back to bite him. The EU trademark office said in its ruling that Banksy’s use of the Flower Thrower brand was ingenuine. And that the merchandise being sold there was in “bad faith,” inconsistent with honest practices, and aimed at creating or keeping a share of the market by selling products to circumvent the law.  

Now, Banksy’s other trademarks are at risk of being invalidated on the same grounds.

Trademark v. Copyright?

Banksy once famously declared “copyright is for losers,” opting to trademark his work instead.

In short, copyright and trademarks are two different intellectual property rights. Copyrights protect artistic works such as paintings. While trademarks protect logos and signs that help consumers make educated purchase choices.

The reason Banksy doesn’t use copyright is to protect his anonymity. If he sued for copyrights, Pest Control would have to produce evidence showing that it acquired the copyright from the artist. This would reveal Banksy’s real name. Which would likely affect the value of his art. But more than that, doing so would bring about the end of an era for him. An era marked by anti-establishment provocation.

Additionally, it should be noted that copyrights have an expiry date that can’t be renewed. Whereas trademarks can be. Hence, by trademarking his artwork Banksy was attempting to assert lasting control..

Takeaway

In 2019, changes to Canada’s Trademarks Act, RSC 1985, c. T-13 saw new provisions added to allow for challenges and removal of trademarks filed in bad faith. However, the act did not define bad faith. And so, the bad faith concept has since been explored in subsequent opposition proceedings. As the decision for Banksy’s case came from the European Union Intellectual Property Office it isn’t far-fetched to believe that a similar interpretation could be adopted into Canadian trademark law. Meaning, the purpose of a trademark would be to protect against unfair competition and allow consumers to identify the commercial origin of goods or services.

Disclaimer: The information in this article is not legal advice. This is legal information only. Reviewing information about the law may help you understand whether you need legal assistance. Whether and how this information applies to your circumstances requires the assistance of legal counsel who can apply the information to your needs. Do not rely on this article to make decisions.

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