Laugh Now

The well-known street artist, Banksy, was recently able to keep his EU trademark registration for his artwork 'Laugh Now', designed in 2002. After the Benelux Intellectual Property Office, BOIP, previously nullified his trademark, the Board of Appeal overturned the earlier decision and rectified Banksy's trademark registration.

No more laughing

The registration request for the artwork, Laugh Now, was submitted in 2018 by the so-called Pest Control Office Limited: the agency that serves as Banksy's legal entity and ensures the authentication of his artworks. Moreover, the office manages Banksy's commercial interests, allowing him to remain anonymous.

Shortly after the registration, invalidity proceedings were initiated by Full Colour Black Limited, an agency selling greeting cards featuring street art and graffiti. Full Colour Black argued that the trademark application had been submitted in bad faith and that the disputed mark was also too descriptive, and therefore wasn't distinctive enough. Initially, the agency, BOIP, agreed with Full Colour Black and therefore Banksy's trademark was declared invalid.

Banksy’s rescue

Recently, the Board of Appeal repealed the decision of BOIP. The Board clarified that the mark isn't descriptive and that it does have a distinctive character. In addition, the agency pointed out that the artwork also enjoys copyright protection, for which this judgement should be considered irrelevant. In other words, it is perfectly possible for an artwork to be cumulatively protected by both, trademark and copyright law. In practice, Banksy can't make an appeal to copyright without losing his anonymity.

Copyright is not for losers

Therefore, it was argued that the trademark application was filed in bad faith, as Banksy wanted to get round copyright law and instead still obtain protection for his artworks through trademark law. Also that argument wasn't accepted, as Banksy can renounce his copyright and still have the genuine intention to use the disputed artwork as a trademark.

Although Banksy has previously condemned copyright (once he even claimed that "copyright is for losers"), he seems to understand the benefits of trademark registration. Always consult a trademark specialist before registering your trademark!