arts and design

Banksy trademarks two of his best known artworks in Australia

The street artist Banksy has successfully trademarked two of his most famous artworks in Australia, in an attempt to stop them being copied and sold.

The secretive artist applied for the trademarks via a law firm based in Perth, and although the legal tactic failed in Europe, the Australian applications were successful and will be registered next week.

The two artworks covered by the successful application have become globally iconic; Love is in the Air, a stencil of a masked man throwing a bouquet of flowers, and Girl with Balloon, another stencil of a girl letting go of a balloon in the shape of a heart.

The trademarks will apply to the use of the images on a range of goods, including posters, handbags, umbrellas, bedsheets, clothing and rugs.

Banksy’s London-based company Pest Control Office Ltd applied for the trademarks with IP Australia, the federal agency that administers intellectual property in Australia, in July 2019. The applications were approved in April 2021, and the two-month objection period expires at the end of June.

David Stewart, the principal of the Perth-based law firm Bennett & Co, which made the application for Banksy, declined to comment on the case.

Kellie Jukkola, an associate and trademarks attorney at Michael Buck IP lawyers, said it was an unusual approach as protection of art is usually done through copyright.

“It’s not the foremost way of doing that, but if a particular artwork is very much associated with a company or a person, and they advertise their services by reference to that artwork, it could work.”

Jukkola said trademarks were not intended to be used to protect artworks, but to inform consumers of the origin of goods.

“A trademark is intended to be an indicator of the origin of the goods and services specified in the registration.”

“Trademarks are usually a word or logo, or even a sound. Generally speaking it is the name or logo associated with a business.

“If it’s a standalone piece of art, I don’t think trademarks are the appropriate registration to use to stop other people from using the artwork.”

The applications come after a European Union court cancelled four trademark applications on Banksy’s work last week.

In a highly critical judgment, the court found the applications were being made in bad faith. It was a similar finding to a September decision on Banksy’s trademark application for Love is in the Air.

The courts found the applications were in bad faith because Banksy had not sold any goods related to the trademarks, until he set up a store called Gross Domestic Product in 2019, in a move the courts said was a means to “circumvent the law”.

The courts also asserted that Banksy would need to identify himself to successfully apply for copyright for the artworks. They also noted that Banksy once said “copyright is for losers” in his book, Wall and Piece.

According to a note on his Pest Control Office website, the public is “welcome to use Banksy’s images for non-commercial, personal amusement. Print them out in a colour that matches your curtains, make a card for your gran, submit them as your own homework, whatever.

“Saying ‘Banksy wrote copyright is for losers in his book’ doesn’t give you free rein to misrepresent the artist and commit fraud. We checked.”


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