Anonymous artist Banksy has lost a legal battle in a two-year dispute with Full Colour Black, a UK greeting card company, over the trademark of his iconic artwork of a masked protester throwing a bouquet of flowers.
Flower Thrower first appeared on a wall on the side of a garage in Jerusalem in 2005. By substituting the weapon with a bouquet of colourful flowers, Banksy showed hope for peaceful resolution of conflicts. The artwork was believed to be in response to the violence in the Middle East.
Banksy’s first created Flower Thrower on a wall in Jerusalem
Pest Control Office Limited, Banksy’s representatives, successfully applied for an EU trademark for Flower Thrower in 2014. However, in 2019, Full Colour Black, a UK greeting card company that often uses artwork by Banksy, sought cancellation of the mark. They claimed the artist had no intention of using the trademark, which was filed in bad faith only to stop ‘the ongoing use of the work which he had already permitted to be reproduced’.
In response to the challenge, Banksy launched a shop called Gross Domestic Product in October 2019 in south London, offering only online sales with versions of Flower Thrower. The artist also admitted in an interview that the shop was opened ‘for the sole purpose of fulfilling trademark categories under EU law’
Banksy wrote in a statement that ‘this shop (Gross Domestic Product) has come about as a result of legal action’
Banksy’s Flower Thrower figurine
After a two-year dispute, The European Union Intellectual Property Office (EUIPO) panel ruled against the artist, whose identity remains anonymous, since he could not be identified as the unquestionable owner of such works.
‘Banksy has chosen to remain anonymous and, for the most part, to paint graffiti on other people’s property without their permission, rather than to paint it on canvases or his own property,’ the panel said.
An EU trademark has to be put to genuine use in the European Union in the five years following its registration, against the risk of losing it. Yet, Banksy hadn't sold merchandise or other items using the image until Full Colour Black challenged the trademark in 2019. ‘His intention was not to use the mark as a trademark to commercialise goods and carve out a portion of the relevant market, but only to circumvent the law,' the ruling said. ‘These actions are inconsistent with honest practices.’
Aaron Wood, the trademark lawyer who represented the card company, said the ruling could mean other Banksy trademarks were now at risk. ‘If there was no intention to use then the mark is invalid, and there is also the question of fraud. In fact, all of Banksy’s trademarks are at risk as all of the portfolio has the same issue,’ said Wood. Banksy and Pest Control Office have not yet responded to the ruling.