Intellectual property: Banksy loses trademark case over the 'Flower Thrower'

Carla Harmon
September 19, 2020

"It must be pointed out that another factor worthy of consideration is that he can not be identified as the unquestionable owner of such works, as his identity is hidden".

Full Colour Black, which specialises in "the commercialisation of street art" and is owned by Andrew Gallagher and uses Banksy's art, challenged his EU-wide trademark claiming he was not entitled to a trademark because he did not use it to trade or as a brand, but created it as artwork.

The artwork, known as Flower Thrower, depicts a masked protester throwing a bouquet of flowers.

Banksy has long expressed disdain for intellectual property, famously claiming "copyright is for losers". "Therefore, the filing of a trademark can not be used to uphold these rights which may not exist, or at least may not exist for the person claiming to own them".

The card company, Full Colour Black, initiated legal action against Banksy and his legal team, Pest Control Office, in late 2018.

The renowned street artist cannot keep intellectual property rights on his work as he could not be "unquestionably" recognized as its sole owner due to his complete anonymity, a European intellectual property authority has ruled.

In October previous year, Banksy suddenly opened a shop showing his works, including versions of the Flower Thrower, and offered it for sale online. In an interview, the artist admitted that the shop was opened "for the sole goal of fulfilling trademark categories".

They wrote in their conclusion:"It was just through the course of the current event that Banksy began to sell products but specifically stated they were simply being marketed to conquer non-use for trademark proceeding rather than to commercialise the merchandise".

"Banksy was trying to use the sign only to show that he had an intention of using the sign, but his own words and those of his legal representative unfortunately undermined this effort", said the judges. The British company Full Color Black applied for the cancellation of the trademark, as it prints and sells images of Banksy's motifs on postcards, among other things.

"If there was no intention to use, then the mark is invalid, and there is also the question of fraud..."

"He will need to consider whether any of his trademarks for his artworks are actually valid", Wood said.

There has not been any official comment on the developments and the ruling from Banksy's legal team. The nine-room hotel named "The Walled Off Hotel" will officially open on March 11.

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