Banksy’s Laugh Now graffiti predicted a role inversion. On Thursday, May 18th, the Cancellation Division of the European Union Intellectual Property Office (EUIPO) invalidated a trademark on the street artist’s image of a monkey wearing the sign “Laugh now, but one day we’ll be in charge.” This was the EUIPO’s second invalidation of a Banksy trademark in less than a year.
Banksy, Rage, Flower Thrower (2003). Image Courtesy of Lazinc
Back in 2014, Pest Control Office Ltd. a company that acts on Banksy’s behalf to maintain his anonymity, registered a trademark of the artist’s Rage, Flower Thrower graffiti. Because Full Colour Black, a British art licensing company specialized in the printing of street art, was determined to sell greeting cards illustrating Flower Thrower, the company challenged the registration claiming bad faith under Article 59(1)(b) of the EU Trade Mark Regulation. Full Black Colour argued that Banksy never intended to use the mark. Rather, it claimed that Banksy had registered it to maintain full control over the use of his images and to continue to grant regular copyright licenses. Full Black Colour demonstrated Banksy’s aversion to copyright law by referring to the artist’s public claim that “Copyright is For Losers©TM”.
On September 14, 2020, the Cancellation Division aligned with Full Black Colour and invalidated the artist’s trademark: “It must be pointed out that…[Banksy] cannot be identified as the unquestionable owner of such works as his identity is hidden; it further cannot be established without question that the artist holds any copyrights to a graffiti. The contested EUTM was filed in order for Banksy to have legal rights over the sign as he could not rely on copyright rights, but that is not a function of a trademark.”
Banksy, Laugh Now (2005). Courtesy Artsy
In the meantime, Full Black Colour had filed a second complaint before the EUIP to invalidate Banksy’s trademark of Laugh Now on the same legal grounds. On May 18, 2021, the artist argued that the claimant had not provided sufficient evidence to prove bad faith. Banksy referred to the Court of Justice of the European Union’s C-371/18 judgement (2020), in which the Court had held that invalidation for bad faith is appropriate when the trademark was filed “with the intention of undermining, in a manner inconsistent with honest practices, the interests of third parties or with the intention of obtaining…an exclusive right for purposes other than those falling within the functions of a trade mark.” (§74). Banksy also raised the interesting argument that, under Article 11.1 of the EU Charter of Fundamental Rights, which protects freedom of expression, he could not lose the right to file a trademark on the basis that he had previously claimed that copyright is for losers. Moreover, Banksy explained his comment “was clearly ironic as it was accompanied by both a copyright and trade mark symbol.” Finally, the artist recalled that in Creative Foundation v. Dreamland Leisure Ltd. (2015), which concerned Banksy’s entitlement to copyright protection as a street artist, the English High Court’s Chancery Division held that trademarks and copyrights are not exclusive. Banksy argued that his refusal to copyright Laugh Now did not disqualify his trademark registration.
Once again, however, the EUIPO aligned with Full Black Colour. The Cancellation Division found that Banksy did not use any of his registered marks as trademarks. Instead, it held that his trademarks were an attempt to monopolize images on an indefinite basis, and that his EU trademark was filed to circumvent copyright law, amounting to bad faith. Who’s laughing now?