Not laughing now: Banksy loses second trademark case over famous monkey image

Ruling slams British street artist for “sham efforts” in trying to mislead the European Union Intellectual Property Office

Banksy's Laugh Now But One Day We'll Be In Charge (2002), sold at Christie's on 11 May for $2.1m (with fees) Courtesy of Christie's

Banksy's Laugh Now But One Day We'll Be In Charge (2002), sold at Christie's on 11 May for $2.1m (with fees) Courtesy of Christie's

The British street artist Banksy has lost a second trademark battle, this time over his famous monkey image. The ruling, published by the European Union Intellectual Property Office (EUIPO) yesterday, follows a decision in September to strip Banksy of the trademark of his Flower Thrower work.

Originally commissioned by a nightclub in Brighton in 2002, Banksy first depicted his monkey with a sandwich board hung around its neck which read: “Laugh now, but one day we’ll be in charge”. Since then, the image has formed the basis for countless works of art, including one version which sold at Christie's New York on 11 May for $2.1m. The EUIPO describes the image as “arguably the most iconic and famous of his works”.

Pest Control, the body that has authenticated Banksy’s primary market works since 2008, first filed an EU trademark for his “monkey sign” work in November 2018, which was registered in June of the following year. However, in November 2019 the greeting card company, Full Colour Black, formally opposed the trademark, claiming that it was filed in bad faith and that it was non-distinctive.

This week’s decision ruled that Banksy’s EU trademark is “declared invalid in its entirety”. Neither Banksy nor Pest Control could be immediately reached for comment.

The “final nail in the coffin”, according to Aaron Wood, the lawyer representing Full Colour Black, were comments made by Banksy and his legal representative concerning the Flower Thrower dispute, during which time Banksy opened the store, Gross Domestic Product. Banksy filled the shop, which never actually opened, with items “created specifically to fulfil a particular trademark category under EU law”.

However, this reasoning backfired, leading the EUIPO to rule again this week that Banksy’s registrations “were not intended to be used” and that the street artist and his legal team “have concocted sham efforts to try and mislead the EUIPO into believing that there was such an intent”.

Banksy’s trademark filing over his monkey image also raised broader issues concerning “the monopolisation of art works via trade marks [and] the question of collateral purpose”. Copyright protects an artist’s work from reproduction for their lifetime plus 70 years after their death, while a trademark identifies and secures the commercial origins of a product.

The judgment also notes that, at the time he registered for the trademark, Banksy’s monkey image existed as graffiti in a public place, which meant it was “free to be photographed by the general public and has been disseminated widely”. The ruling continues: “Banksy […] even provided high-resolution versions of his work on his website and invited the public to download them and produce their own items.”

As early as 2007, Banksy knew his works were being reproduced “on a massive scale without any of it being under his control”, according to the EUIPO. In his book, Wall and Piece, Banksy stated that “copyright is for losers”, suggesting that anything depicted in public can be freely used by all and without permission.

However, the artist argued that “public access to a sign and wide dissemination of a sign is not a bar to registration”. What is more, “an anti-establishment viewpoint does not prevent a party from utilising establishment mechanisms in order to further their view”, while the statement about copyright being for losers was “clearly ironic” and “did not encourage slavish commercial copying”.

Copyright and anonymity

In the earlier hearing over the trademark to Banksy’s Flower Thrower image, the issue of copyright was deemed problematic as the artist maintains complete anonymity. The panel said that, if Banksy could not be identified as the “unquestionable owner” of his graffiti, as his identity is a secret, “it further cannot be established without question that the artist holds any copyrights to a graffiti”.

In the latest ruling, Banksy said that creating a work of art in a public place did not automatically disqualify him from owning copyright. And, even if the law did restrict copyright ownership for these types of public works, the artist “would have stencilled the drawing in its studio prior to reproducing it in the public location”.

Speaking to World Trademark Review, Aaron Wood says he expects “more blows” for Banksy in the coming weeks. The artist has re-filed his Flower Thrower trademark, asking for more time to prove the image has been used in other locations. “Ultimately, there are five more cases before the EUIPO and I anticipate four of them being decided within the next month or so in the same way as this latest decision,” Wood says.

He adds: “I believe the decision sounds the death knell for his trademark portfolio—at least in the European Union—and it raises the spectre of cases in other countries.”