Banksy Wins EU Trademark Case

Laugh Now was first commissioned as a mural by the Ocean Rooms Nightclub on Morley Street in Brighton in 2002. It was originally a six-meter-long spray-painted work, with the figure of the monkey repeated ten times, with six of them disseminating a direct message on their sandwich boards: “Laugh now, but one day we’ll be in charge.”

Back in May 2021, Banksy lost a second trademark case over his ‘Laugh Now’ monkey image that was first filed by Pest Control in November 2018 - this followed the loss of his Flower Thrower trademark in September of the year prior. With the European Intellectual Property Office (EUIPO) ruling in favour of the greeting card company, Full Colour Black, who formally opposed the trademark in 2019 claiming it was filed in “bad faith” and that the work was non-distinctive. In the earlier hearing over the trademark of the Flower Thrower image, there was a case made against its copyright validity as Banksy maintains complete anonymity.

The panel claimed that Banksy could not be identified as the “unquestionable owner”, as his identity remains a secret, “it further cannot be established without question that the artist holds any copyrights to a graffiti’. According to Aaron Wood, a trademark lawyer at Brandsmiths who represented Full Colour Black said the case relied on their claim that Pest Control filed the trademark without intent to use it.

Fast-forward to now, a board of appeal has recently reversed the decision which initially sought to make Banksy’s trademark for the famous monkey image invalid.

In a ruling published earlier this month, a board of appeal challenged the claim that the mark was made in “bad faith”, arguing that they found no evidence of ill-intent from the artist or Pest Control:

“All the arguments, facts and reasonings provided by the cancellation applicant taken as a whole cannot justify or explain clearly a dishonest behaviour from the EUTM proprietor (Pest Control) when he filed the contested mark and, consequently, the presumption of good faith is still valid and the cancellation applicant failed to prove the contrary.”

The recent decision clarified that just because a trademark might also be a work of art subject to copyright protection, it should not infringe on its ability to be used as a trademark or brand - importantly, trademark identifiers are issued under a “use it or lose it” clause whereas copyright is conferred immediately on any “original work”. This means the piece in question is now protected by both copyright and trademark laws.

“This is a significant victory for Banksy, or more accurately Pest Control Office Limited, which enables Banksy to conceal his identity,” says trademark specialist Lee Curtis from the law firm HGF limited. Likely the biggest implication of the ruling is that it allows Banksy to maintain his anonymity through the use of Pest Control. Full Colour Black has no plans to appeal the decision.

Banksy’s instantly recognisable stencilled graffiti style is a signature. His Laugh Now image sold for $2.9m at Sotheby’s in June 2021 and continues to appear in pop culture media across the world.

It's been a busy week in the world of Banksy, in a related storm of events, retail company GUESS have come under fire after their flagship Regent Street store recently launched a GUESS x Brandalised collaboration featuring some of the artist's work without his permission. Images used include Follow Your Dreams, Flower Thrower and Balloon Girl. After accusing the clothing brand of stealing his work, Banksy encouraged people to visit the fashion retailer and shoplift clothes in an Instagram post. GUESS promptly responded by closing their store temporarily, covering up the window display and hiring security.

Banksy’s works have recently appeared across war-torn Ukraine in a show of hope and support. You can read more about it in the viewing room below.