The new ruling in the street artist's ongoing dispute with a greeting card company could ‘sound the death knell’ for his trademark portfolio
Banksy has suffered another blow in his ongoing legal battle with a greeting card company that claims it should be able to freely use his artworks on its products. On May 18, the “Cancellation Division” of the European Union Intellectual Property Office (EUIPO) ruled in favour of the company, saying that the artist’s trademark for one of his most iconic works — Laugh Now — is invalid.
Depicting a chimpanzee holding a sandwich board (often reading “Laugh now, but one day we’ll be in charge”), Laugh Now has been at the centre of the dispute for some time. In 2018, the company that issues certificates of authenticity for Banksy, Pest Control, filed an EU trademark claim for the artwork, leading the greeting card company Full Colour Black to apply for its cancellation in November 2019.
Full Colour Black argued that Laugh Now is a work of public graffiti, like most of the elusive street artist’s work, and the EUIPO ruling upholds that definition. “It was free to be photographed by the general public and has been disseminated widely,” it states. “Banksy permitted parties to disseminate his work and even provided high-resolution versions of his work on his website and invited the public to download them and produce their own items.”
One of the major reasons that it ruled against upholding the copyright is Banksy’s anonymity, which makes it difficult to identify him as the unquestionable owner of the work. “As Banksy has chosen to be anonymous and cannot be identified, this would hinder him from being able to protect this piece of art under copyright laws without identifying himself,” the ruling adds. “While identifying himself would take away from the secretive persona which propels his fame and success.”
In an ironic twist, Banksy’s own words have also come back to haunt him. At one point, the ruling cites Banksy’s statement that “copyright is for losers” in the 2005 book Wall and Peace (which, admittedly, doesn’t do him any favours in this context, though it doesn’t technically affect his legal rights). However, public comments made by the artist and his lawyer when he opened up a gift shop two years ago were “the real nail in the coffin”, attorney Aaron Wood tells the World Trademark Review.
Announcing the shop in 2019, Banksy explained: “A greetings card is contesting the trademark I hold to my art, and attempting to take custody of my name so they can sell their fake Banksy merchandise legally.”
The EUIPO previously stated that they believed Banksy’s intention with the shop “was not to use the mark as a trademark to commercialise goods… but only to circumnavigate the law” and that “these actions are inconsistent with honest practices”.
Following the new decision, several other Banksy trademarks remain at risk, with five more cases set to come before the EUIPO. Wood expects that four of them will be decided within the next month, in the same way as the latest decision, adding: “I believe the decision sounds the death knell for his trademark portfolio.”