The EUIPO rendered its decision in “Laugh now” - and indeed on the other four cases - entirely on the grounds of bad faith. Absolute grounds are not available at the opposition stage in the EU (unlike in the UK), and an invalidation was filed in November 2019 against the EUTM on the grounds of bad faith as well as claiming that the mark lacked distinctive character and was descriptive.

The “Laugh now” EUTM was filed in November 2018, in classes 9, 16, 25, 28 and 41 and the mark reached registration in June 2019. The original work depicts ten monkeys with signs around their necks, some of which are blank and some of which feature the aforementioned wording, whilst the EUTM filed and declared invalid comprised a single monkey with a blank sign.

One of these cases involves the famous work “Laugh now, but one day we’ll be in charge”, which was created by Banksy in 2002 on the commission of a Brighton nightclub. Mirroring the outcome of the “Flower thrower ” (sometimes referred to as “Flower bomber”) case reported on last year, the Cancellation Division declared the EUTMs invalid on the grounds of bad faith. The declarations of invalidity were brought by Full Colour Black against EUTM registrations for signs relating to famous artworks by Banksy, including: “Laugh now”, “Love rat”, “Girl with an umbrella”, “Radar rat” and “Bomb hugger”.

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