Can an anonymous creator enforce copyright?
In theory, each of Banksy's well-publicised “guerrilla artworks” automatically enjoys copyright protection as an original artistic work in Japan and elsewhere (although the availability of copyright protection for works created through “unlawful acts” has been debated
1,
2).
Despite this protection, Banksy actively encourages the public to use his artwork for a wide variety of non-commercial purposes. He draws a firm line, however, at any attempt at commercial exploitation. As stated by
Pest Control Office Limited, the organisation that authenticates and manages his work:
The difficulty for Banksy is enforcement. In many jurisdictions, enforcing a copyright requires proving authorship or ownership. Yet Banksy deliberately conceals his true identity, as anonymity is integral to his artistic expression. This dilemma has been exploited by various third parties looking to commercialise his artwork without authorisation.
“To protect the right under copyright law would require him [Banksy] to lose his anonymity which would undermine his persona.”
— Comments by the EUIPO during a cancellation action involving Banksy (Case 39 873 C).
Trademark protection as an alternative
The anonymity constraints of copyright are one reason Banksy has turned to trademark registration to protect many of his works, despite his aversion to such ownership. This is because, unlike copyrights, trademarks can generally be registered, held, and enforced by a corporate entity, allowing the underlying creator to maintain their public anonymity.
According to WIPO's Global Brand Database, Banksy’s proxy Pest Control has
registered or applied for 58 figurative and word marks across the US, UK, EU, and Australia.
Unsurprisingly, several of these trademarks have been the subject of cancellation or invalidity actions by parties seeking to use Banksy's work for commercial purposes. These challengers have typically argued that the marks are descriptive, devoid of distinctive character, or—most notably—were filed in bad faith as a means of improperly obtaining exclusive rights to artwork that copyright law could not provide.
FCB v Pest Control:
Genuine intent to use vs. bad faith
The defining battle in these long-running disputes was between Banksy (Pest Control) and Full Colour Black (FCB), a UK greeting card company that used Banksy’s imagery on its products.
FCB filed cancellation actions against several of Banksy's EU trademark registrations, alleging a lack of distinctiveness and bad faith. In the most widely reported of these actions, the EUIPO Cancellation Division invalidated Banksy’s figurative “Laugh Now” mark (EUTM No. 017981629) after agreeing that it had been filed in bad faith. The EUIPO did not examine the distinctiveness argument, since the bad faith ground alone was sufficient to invalidate the mark.
FCB v Pest Control, EUIPO Cancellation No. 39 873 C ("Laugh Now").
At the core of the EUIPO decision was the finding that the “Laugh Now” mark did not fulfil the essential function of a trademark—as a source indicator—and had been filed without a genuine intention to use it as such. Instead, the registration was viewed as a transparent attempt to obtain the “monopolisation of art works via trade marks.... as he [Banksy] could not rely on copyright rights."
The EUIPO referred to Banksy's opening of a pop-up shop in London called
Gross Domestic Product, which was presented as evidence of trademark use. However, the shop was never opened to the public and largely operated as an art installation visible through its windows. The EUIPO also noted that there was no evidence of commercial sales through the associated online shop until "just before the date of filing of the present application for a declaration of invalidity."
Somewhat unusually, the decision also cited statements attributed to Banksy and Pest Control, which expressed their "vocal disdain for intellectual property rights" as further evidence that Banksy never intended genuine use as a trademark for the designated goods and services. This is a charge that Banksy has all but admitted when he described the motivation behind the Gross Domestic Product venture as “possibly the least poetic reason to even make some art – a trademark dispute.”
Cancellation overturned on appeal
However, the matter did not end there. On appeal, the Fifth Board of Appeal of the EUIPO annulled the Cancellation Division’s invalidation decision completely (Pest Control v FCB (Case R 1246/2021-5)), finding that FCB had failed to demonstrate that the mark had been filed in bad faith.
The Appeal Board held that Banksy’s previous difficulties in enforcing copyright due to his anonymity, his criticism of intellectual property rights, and the absence of commercial use were insufficient to prove bad faith, particularly as the mark remained within the five-year grace period for proving genuine use.
The Appeal Board was also dismissive of FCB’s distinctiveness argument, which the Cancellation Division had left unaddressed. According to FCB, consumers viewed the trademarked image as a decorative artwork rather than as a trademark indicating the origin of goods, particularly given its widespread use on a range of products before the filing date. The Board disagreed, declaring that “the mere statement that the sign (artwork) would be perceived as decoration without any capacity to indicate the origin of the goods is not sufficient” to prove the point.
Banksy sued for libel
When proceedings at the EUIPO stalled, the conflict shifted to civil court. FCB sued Banksy for libel in the UK High Court, alleging that an Instagram post—which called on shoplifters to target retailers selling merchandise featuring Banksy's artworks—had defamed their commercial business.
“Attention all shoplifters... They’ve helped themselves to my artwork without asking. How can it be wrong for you to do the same to their clothes?”
— Banksy’s Instagram post.
This civil action also failed. The presiding judge inferred that FCB’s objective was less about recovering reputational damages and more a transparent attempt to use the litigation process to force Banksy to reveal his legal identity, since parties to civil cases generally cannot remain under pseudonyms.
Current status of Banksy’s trademarks
Based on the available records, Banksy’s “Laugh Now” mark remains active. However, more than five years have now passed since registration, as is the case for many of Banksy’s other EU trademarks. Consequently, the susceptibility of these marks to revocation if challenged may depend on whether genuine use can be demonstrated for the relevant goods and services.
Perhaps mindful of this, Banksy’s
Gross Domestic Product
online shop remains in operation. However, most, if not all, of its satirical products are marked as “Currently Out of Stock”. Whether the site is a genuine commercial venture, an ongoing art project, a wry attempt to comply with trademark requirements—or all three—who can say.
How would Banksy’s disputes be viewed under Japanese IP law?
From a Japanese perspective, the same principles of copyright and trademarks broadly apply. While Japan does not require authors to identify themselves publicly to enjoy copyright protection, enforcement and proof of ownership are practical challenges for those seeking anonymity. Likewise, while Japanese trademark law is receptive to non-traditional marks and logos consisting of paintings and artworks, they must be distinctive, function as source indicators, and be filed with a bona fide intention to use, or face non-use cancellation actions after three consecutive years under Article 50 of the
Japanese Trademark Act.
Is copyright for losers?
Whatever you think of Banksy's views on copyright and trademarks, his ongoing struggles demonstrate that protecting and enforcing intellectual property rights requires a strategic, multifaceted approach. Copyright, trademarks, and branding serve different purposes, and none can be substituted for the others.
Whilst Banksy famously declared that “copyright is for losers”, the commercial reality is that intellectual property rights remain the best tools for protecting creativity, safeguarding reputation and determining who controls and benefits from
these valuable intangible assets.
Contact KIPB today
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