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https://content.fortune.com/wp-content/uploads/2022/11/GettyImages-1236960812-e1669032806709.jpgAnonymous graffiti artist Banksy accused clothing retailer Guess of stealing his iconic “Flower Thrower” art piece for a store display at its Regent Street location in London—and called on his Instagram followers to shoplift the store.
In a post to his 11.5 million followers, Banksy posted a photo of Guess’ Regent Street store along with the caption, “Attention all shoplifters Please go to Guess on Regent Street. They’ve helped themselves to my artwork without asking, how can it be wrong for you to do the same to their clothes?”
The storefront was part of a new capsule collection made in collaboration with Brandalised, which Guess called “an urban graffiti license whose mission is to offer Banksy fans affordable graffiti collectibles.”
The owner of Brandalised, Andrew Gallagher, is also the owner of the greeting card company Full Colour Black, according to his Linkedin, and Banksy has been fighting with Full Colour Black for three years over the use of his “Flower Thrower” and “Laugh Now” pieces. While the Brandalised website has a quote from Banksy on its front page, Gallagher has had two ongoing EU disputes with the street artist over licensing and selling images of Banksy’s work without his permission.
After the Banksy post, Guess store staff quickly covered the window display. Brandalised and Guess did not respond to Fortune’s request for comment.
EU IP rules and Banksy’s long fight with Full Colour Black
In 2014, Pest Control Office, the official body which acts on behalf of Banksy and authenticates his work, successfully applied for an EU trademark of the “Flower Thrower” motif, the same used by Guess in the latest dispute.
Gallagher’s greeting card company Full Colour Black started an invalidity action in March 2019 to cancel the EU trademark on the iconic mural, arguing that Banksy must copyright his work instead of registering trademarks to incorporate them. The ruling giving Banksy the trademark was upturned in 2020.
Banksy has expressed little interest in copyrighting his work, not only because he previously contested “copyright is for losers,” but also because, in order to receive a copyright, he would have to reveal his identity to Pest Control and the EU. In a basic sense, copyrights protect the rights of creators of artistic and literary works, while trademarks protect a company’s name, brand identity, and product names.
It took EU courts a year and a half to rule on Full Colour Blacks’ claims, and in the meantime, Banksy set up a brick-and-mortar gift shop called Gross Domestic Product to push the trademark case into the public eye. At the opening of the shop, which only displayed items in the storefront, never opened its doors, and only offered online sales, Banksy said his motivation to open the store was “possibly the least poetic reason to ever make some art.”
“A greetings card company is contesting the trademark I hold to my art and attempting to take custody of my name so they can sell their fake Banksy merchandise legally,” Banksy said in a statement.
In the end, the European Union Intellectual Property office panel ruled against the artist in September 2020, because he could not be identified as the unquestionable owner of such works. The EU court judges said they were not convinced that the opening of the artist’s “pop-up shop” demonstrated a real intention to legitimize the trademark and condemned it as “inconsistent with the honest practices of the trade.”
Laugh now, but one day we’ll be in charge
Full Colour Black then won a second time against Banksy.
In May 2021, Banksy lost a second trademark, this time to his “Laugh Now” piece, featuring a monkey wearing sandwich advertising boards that says “Laugh now, but one day we’ll be in charge.” In a second lawsuit opened in November 2018, Full Colour Black fought against Banksy’s trademark, claiming it was filed in bad faith and that it was non-distinctive.
Daniel Berehulak—Getty Images
Banksy however successfully appealed this decision, with the EU Intellectual Property Office overturning its previous ruling on Nov. 15 this year, allowing Banksy to keep the trademark of “Laugh Now” and retain his anonymity. The EU courts said Full Colour Black failed to prove the trademark was filed in bad faith.
“This is a significant victory for Banksy, or more accurately Pest Control Office Limited, which enables Banksy to conceal his identity,” Lee Curtis, a trademark specialist at the law firm HGF Limited told digital art magazine Why Now.
While Banksy’s “Flower Thrower” piece is still open for licensing by anyone under EU regulation, the new “Laugh Now” ruling may pave the way for a new appeal.
But Banksy may have been too busy to celebrate his appeal’s success. A new series of his graffiti works appeared last week in the Ukrainian town of Borodyanka, which had been occupied by Russia until April and heavily damaged by fighting in the early days of Moscow’s invasion. The new work includes one of a girl gymnast performing a handstand on a pile of concrete rubble.
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