By Josh H. Escovedo
IP Law Blog
If you’re familiar with Banksy, you know he’s the epitome of counterculturalism. For those of you who aren’t familiar with Banksy, he is an anonymous England-based street artist, vandal, political activist, and film director who has been active since the 1990s. His satirical street art and subversive epigrams combine graffiti and dark, sometimes morbid, humor. If you have a minute, take a look at his work. He certainly isn’t someone who you would expect to turn to the legal system to protect his intellectual property. In fact, he’s openly stated that “copyright is for losers.”
Nevertheless, it turns out that Banksy would, in fact, turn to the legal system to put a stop to the misappropriation of his work. Banksy recently made a public statement that a greeting card company is misappropriating his intellectual property and attempting to procure a trademark in his name so that they can sell fake Banksy merchandise without fear of legal prosecution. In fact, although the details are a bit unclear, it seems the greeting card company, Full Colour Black, brought the fight to Banksy, seeking to cancel various copyrights and trademarks Banksy holds in the European Union Intellectual Property Office. Banksy believes that Full Colour Black is relying upon Banksy not showing up in court to defend his property, but judging by Banksy’s reaction, that couldn’t be further from the truth.
Instead of cowering at the intellectual property challenge, Banksy has expressed an intent to fight for his rights. In furtherance of the protection of his intellectual property, Banksy plans to open his first storefront in southern London. The homeware store is called Gross Domestic Product, and it is truly nothing more than a window display that will never actually open. The products in the display will be exclusively sold online once the store opens, and they will be available for as little as 10 euro. The purpose of opening the store is to support Banksy’s argument that he is utilizing his intellectual property in commerce, as the European Union, much like the United States, requires the intellectual property owner to use the mark in commerce to maintain the related rights. In short, both government entities require the owner to “use it or lose it.”
While I’m not thoroughly versed in European intellectual property law, Enrico Bonadio, an intellectual property professor from the City University of London, has stated that, “If Banksy wants to keep enforcing any of his trademarks in courts around the world, and avoid the risk of them being cancelled for lack of use, he will need to show judges stronger evidence of his brands being used in the market.” According to Bonadio, “This probably means he needs to start regularly producing and selling his own branded merchandise through a specialized commercial vehicle.” This, however, conflicts with Banksy’s general aversion to commercialism and capitalism.
Interestingly enough, Banksy has stated that although he will protect his intellectual property as discussed above, he hasn’t changed his sentiments toward copyright law. In fact, Banksy, consistent with the fair use doctrine, “still encourage[s] anyone to copy, borrow, steal, and amend [his] art for amusement, academic research or activism.” He just doesn’t “want them to get sole custody of [his] name.”
For additional articles on intellectual property issues, please visit Weintraub’s law blog at www.theiplawblog.com.