Is Copyright Still for Losers? The EUIPO Declares Banksy’s “Flower Thrower” Trademark Invalid

Is Copyright Still for Losers? The EUIPO Declares Banksy’s “Flower Thrower” Trademark Invalid

It all started with a bouquet of flowers: a bundle of blooms to be hurled by a bandana-clad figure, as stencilled along the wall of a garage. Over the last fifteen years, this image has been printed across T-shirts and phone cases. This past fall, it appeared in a European Union Intellectual Property Office (“EUIPO”) decision. Resolving a dispute between a greeting card company and a graffiti artist, the EUIPO declared Banksy’s “Flower Thrower” trademark invalid.

Since its emergence in 2005, Rage, the Flower Thrower has become one of Banksy’s most iconic, yet controversial works. Seeking to protect the artist’s legacy, his representative, Pest Control, registered the image as a trademark without text in 2014. While artists typically assert and enforce their rights through copyright law, pseudonymous artists, like Banksy, are pressured to reveal their identities. In the United Kingdom, for instance, copyright in a work of unknown authorship expires seventy years from making or first being made publicly available (section 12). By contrast, the author who is or becomes known secures rights for life-plus-seventy years (section 12).

In Banksy’s case, any copyright that he might claim as a pseudonymous artist would expire sooner than it would if his identity were or became known. He has therefore chosen to rely upon a constellation of nondisclosure agreements and trademark applications “to maintain his anonymity and the singularity of his creative vision.” Banksy might remain pseudonymous and gain exhaustive rights through trademark law because, unlike copyright, a trademark can last indefinitely.

The Applicant’s Assertions

In March 2019, Full Colour Black (“FCB”), a greeting card company that commercialises street art, applied to the EUIPO for a declaration that Banksy’s Flower Thrower trademark is invalid. It argued that the mark had been filed in bad faith—an absolute ground for invalidity under Article 59(1)(b) of the European Union trade mark regulation.

In claiming bad faith, the applicant noted that Banksy’s mark was based on a work of graffiti sprayed in a public place. As such, the image had been photographed and disseminated widely. The artist had even shared high-resolution copies, inviting the public to download them and create their own work. These assertions were only bolstered by Banksy’s attitude towards copyright. The artist has infamously denigrated this sphere of IP protection, declaring that “copyright is for losers.”

FCB also contended that Banksy does not use the images he has registered as trademarks. It cast his applications as cynical attempts to circumvent copyright and monopolise his art. The company alluded to a pattern of registration by which the artist attempted to register his works as trademarks in Europe in order to rely on his EU rights to claim registration elsewhere.

The Artist’s Response

Unsurprisingly, Pest Control insisted that FCB submitted insufficient evidence to establish bad faith. It stressed, “Banksy’s statements neither change the law nor prohibit him […] from seeking rights and protections available under the law. An anti-establishment viewpoint does not prevent a party from utilising establishment mechanisms in order to further their view” (at 5). From Pest Control’s perspective, Banksy did not undertake his legal manoeuvring in bad faith. The artist was provoked by parties exploiting his alleged inability to “enforce unregistered trade mark rights and copyright without prejudicing his public persona or business interests” (at 5).

The EUIPO’s Decision

The EUIPO agreed with FCB, finding that the Flower Thrower mark was filed in bad faith. The Panel acknowledged the hurdles the artist would face with copyright, but based its decision on his use of the trademark. After scrutinising the artist’s intentions and the mark’s brief commercial use, the Panel determined that Banksy’s actions were “inconsistent with honest practices” (at 15). He clearly intended “to obtain […] an exclusive right for purposes other than those falling within the functions of a trade mark” (at 15).

The Panel’s decision prompts questions about the IP protections afforded to anonymous and pseudonymous personae. The law recognises anonymous and pseudonymous forms of authorship as legitimate conduits to rights; however, it incentivises, or pressures, authors to make themselves known. Assuming that Banksy can claim copyright, thereby dodging the need for trademark, the law appears to insist that he exchange his name for standard, let alone preferable, copyright terms. Notwithstanding any policy that might justify this scheme, Banksy’s general criticism of copyright appears apt. Copyright might not require artists to surrender their names, as Banksy has recently suggested, but it rewards those who do with better terms.

Written by Halyna Chumak, JD Candidate 2021, enrolled in Professors D’Agostino’s and Vaver’s 2020/2021 IP Law & Technology Intensive Program at Osgoode Hall Law School. As part of the course requirements, students were asked to write a blog on a topic of their choice.