Banksy loses trademark in legal battle over 'Flower Thrower' art

Loss attributed in part to artist's decision to keep identity hidden, officials say

Elusive street artist Banksy lost a trademark battle with a U.K.-based greeting card company and, in turn, the copyright for his famous work, “Flower Thrower,” in part because officials said his hidden identity prevents him from being classified as the “unquestionable owner,” officials said.

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Banksy will be able to appeal the unfavorable decision in his feud with Full Colour Black Ltd., which arose after the famous artist applied to have his piece trademarked in the European Union, according to the Daily Mail and The Associated Press.

The EU’s Intellectual Property Office ruled this week that the trademark application for “Flower Thrower” was “invalid in its entirety,” as it was submitted in bad faith.

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Also known as “Love is in The Air,” the graffiti artist – whose real name and identity are unknown – created the work in Jerusalem in 2005. It depicts a young protester wearing a cap and with his face half-covered throwing a bouquet of flowers.

Full Colour Black, a company that sells products that are printed with images of his work, argued that Banksy’s 2014 trademark should not stand because the artist did not utilize it and that he only ever applied for the trademark to stop “the ongoing use of the work which he had already permitted to be reproduced.”

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Exhibition of the artist Bansky, titled A visual Protest, at Chiostro del Bramante in Rome. In the picture the painting Love is in the air - the flower thrower. Rome (Italy), September 10th 2020 (Photo by Samantha Zucchi/Insidefoto/Mondadori Portfoli

The greeting card company also noted that Banksy wrote in one of his books that “copyright is for losers.”

After Full Colour Black started legal proceedings, Banksy opened an online store called Gross Domestic Product to sell his own range of merchandise. But the move left the EU examiners unconvinced.

“It was only during the course of the present proceedings that Banksy started to sell goods but specifically stated that they were only being sold to overcome non-use for trademark proceedings and not to commercialize the goods,” they wrote in their decision.

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Citing Banksy’s stated contempt for intellectual property rights, the examiners also made clear that the artist’s choice to keep his identity secret hurt him in the “Flower Thrower” case.

“It must be pointed out that another factor worthy of consideration is that he cannot be identified as the unquestionable owner of such works as his identity is hidden,” they wrote. “It further cannot be established without question that the artist holds any copyrights to a graffiti. The contested (trademark) was filed in order for Banksy to have legal rights over the sign as he could not rely on copyright rights, but that is not a function of a trademark.”

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The Associated Press contributed to this report.