Full Colour Black, a small greeting card company, has filed a claim to invalidate the trademark for Banksy’s artwork known as “flower thrower.” In addition, the greeting card company has been directly reproducing said artwork on greeting cards and other merchandise. The England-based street artist is fighting back against the card company in an attempt to protect his trademark.
Banksy has been active since the 1990s as an anonymous street artist and political activist. Banksy is famously anonymous and made headlines last year for selling his Girl With Balloon painting for $1.4 million only for it to be shredded moments later. Banksy is using a shell company called Pest Control to handle the dispute. Through Pest Control, Banksy has trademarked his artwork as well as the word “Banksy.” The “flower thrower” work, officially “rage, flower thrower,” has been trademarked through Pest Control since 2014 and features a man with a bouquet of flowers in his hands in a stance appearing as though he is ready to throw said bouquet.
Since Banksy registered his trademark for “flower thrower” five years ago, and he has not used the mark within this time period, such non-use is grounds for cancellation of the same in the European Union as well as the United Kingdom. As such, Full Colour Blank has come forward to invalidate Banksy’s registration for “flower thrower” in this manner. This system differs slightly from the United States, where, in order to register a trademark, one must prove that they are actively using their trademark on goods or services in commerce. Banksy has publicly expressed his anger towards this situation, claiming the company is attempting to steal his name and artwork for their own profit.
In response, Full Colour Black has stated that they are not trying to steal or profit off Banksy’s brand. They state that they are merely using his “flower bomber” painting for ornamental/decorative purposes and not to claim an association with Banksy or his brand. Moreover, they claim that obviously nobody would confuse their products for anything that relates to Banksy’s brand. Full Colour Black also defends such practice by stating “we legally photograph public graffiti and make it available to you – the public.” However, this claim does not address the fact that the company is doing so by selling, and therefore making a profit, on such allegedly “public” artwork. Instead, the card company accuses Banksy of “never mak[ing] anything available to his fans” that “cannot afford to buy one of his official canvases.”
In response to the lawsuit, Banksy’s lawyers have advised him to open up a pop-up shop in order to protect his trademark by maintaining its registration. The store, set up in the south London town of Croydon, was called “Gross Domestic ProductTM” with a tagline of “Where art irritates life.” While not open about disclosing his identity, in an explanation of the store, Banksy openly discloses “This shop has come about as a result of legal action” and that he “has been advised the best way to prevent this is to sell his own range of branded merchandise.” This storefront was opened with the purpose of demonstrating proof of use of the “flower thrower” and other trademarks, thereby allowing Banksy to fight the claim against his intellectual property.
A trademarkis a word, phrase, symbol, and/or design that identifies and distinguishes the source of the goods of one party from those of others. A trademark is aimed at protecting the consumer by allowing them to know with certainty the source of certain products or services. Copyright, on the other hand, is aimed at protecting the creator and their creations. Both copyright and trademarks give monopolistic rights that allow their owners to profit from their own creations, and preventing others from profiting from creations that do not belong to them.
Banksy, controversially, does not copyright his work and has been quoted saying “copyright is for losers.” Interestingly, then, it does not follow why Banksy would protect his work via trademark. In one sense, perhaps because trademark laws are aimed at protecting consumers by disallowing false associations of source for products and services, while copyright protects the authors of works from infringement, Banksy favors trademark.
Some commentators have speculated that Banksy is against copyright not for moral or political reasons, but rather because in order to copyright his work, he would have to reveal his identity. However, this claim is wholly untrue. In the United States, one may register their copyright under a pseudonym and therefore need not reveal their true identity. Additionally, in the United Kingdom, there is no register of copyright works but instead, the copyright owner is granted protection automatically upon creation of an artistic work. Thus, the question remains why Banksy is willing to trademark, but not copyright his artwork.