As I completed my placement at The Globe, it’s worth noting that I haven’t seen a newsroom or handled A3 newsprint. Like many of my peers learning law in the time of pandemic, I’ve spent the semester hunched over a computer in a corner of my apartment. At the same time, I’ve been fortunate to have virtual experiences that most law students won’t: I’ve met with The Globe and Mail’s legal counsel on a weekly basis, supporting them with a variety of issues within and beyond the ambit of intellectual property law.

Before beginning my placement, I suspected that much of my work would relate to The Globe’s digital platforms and services. An unabashed bibliophile, I prefer print to screen but concede that screen is here to stay. After all, I may stubbornly insist on lugging an 800-page novel or casebook, but I’d be lying if I said that most of my reading takes place offline. Personal admissions aside, this assumption was, in part, correct. While print may not be dead, the digital continues to change how businesses operate and innovate. What I did underestimate was the extent to which such shifts implicate unexpected considerations and areas of law. For instance, I expected my assignments to engage copyright, trademark, and privacy, but consumer protection was a welcome surprise.

And perhaps this was my favourite part of the internship: gaining exposure to terms, practices, and industries I’d never heard of, through the lens of law. As surreal as it was to undertake my first trademark check or draft a notice of infringement, the deliverables that pushed me out of my comfort zone—be it research on advertising technology, or the review of a wire services agreement—were the most memorable. The internship fostered a space to put knowledge to practice, but it gave me a chance to learn beyond the four corners of a syllabus as well.

Now, it’s impossible to reflect on one’s experience at a news media company in 2020 without broaching one of the year’s biggest headlines: namely, the emergence of the COVID-19 pandemic. When I applied for Osgoode’s in January, I imagined I’d spend my fall in an office. This never happened; however, distance did not diminish the warmth and professionalism with which I was welcomed by The Globe’s legal team. My supervisor, Yovan Grulovic, made an effort to understand my interests and assigned tasks aligned with them. The Globe’s Associate General Counsel, Sophia Javed, similarly strove to include me in conversations and projects as often as possible. I sincerely appreciated their mentorship and the time they made to invest in my experiential education. It was a pleasure and privilege to witness their approaches to in-house lawyering—under unprecedented circumstances, no less.

In addition to this wonderful group at The Globe, I extend many thanks to Professor D’Agostino, Professor Vaver, and Olha Senyshyn for their commitment to the IP Intensive. It can’t be easy to facilitate remotely a program that promises practical experience, but they did just this, and they did it well. Needless to say, if you are a student interested in intellectual property, technology, and in-house legal experience, this is the opportunity for you. As I complete my final semester at Osgoode, I can swiftly say that this one was particularly rewarding.

Written by Halyna Chumak, JD Candidate 2021, enrolled in Professors D’Agostino’s and Vaver’s 2020/2021 IP Law & Technology Intensive Program at Osgoode Hall Law School. As part of the program requirements, students were asked to write a reflective blog on their internship experience.

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Since its emergence in 2005, has become one of Banksy’s most iconic, yet controversial works. Seeking to protect the artist’s legacy, his representative, , registered the image as a trademark without text in 2014. While artists typically assert and enforce their rights through copyright law, pseudonymous artists, like Banksy, are pressured to reveal their identities. , for instance, copyright in a work of unknown authorship expires seventy years from making or first being made publicly available (section 12). By contrast, the author who is or becomes known secures rights for life-plus-seventy years (section 12).

In Banksy’s case, any copyright that he might claim as a pseudonymous artist would expire sooner than it would if his identity were or became known. He has therefore chosen to rely upon a constellation of nondisclosure agreements and trademark applications “.” Banksy might remain pseudonymous and gain exhaustive rights through trademark law because, unlike copyright, a trademark can last indefinitely.

The Applicant’s Assertions

In March 2019, (“FCB”), a greeting card company that commercialises street art, applied to the EUIPO for a declaration that Banksy’s Flower Thrower trademark is invalid. It argued that the mark had been filed in bad faith—an absolute ground for invalidity under Article 59(1)(b) of the .

In claiming bad faith, the applicant noted that Banksy’s mark was based on a work of graffiti sprayed in a public place. As such, the image had been photographed and disseminated widely. The artist had even shared high-resolution copies, inviting the public to download them and create their own work. These assertions were only bolstered by Banksy’s attitude towards copyright. The artist has infamously denigrated this sphere of IP protection, declaring that “.”

FCB also contended that Banksy does not use the images he has registered as trademarks. It cast his applications as cynical attempts to circumvent copyright and monopolise his art. The company alluded to a pattern of registration by which the artist attempted to register his works as trademarks in Europe in order to rely on his EU rights to claim registration elsewhere.

The Artist’s Response

Unsurprisingly, Pest Control insisted that FCB submitted insufficient evidence to establish bad faith. It stressed, “ […] from seeking rights and protections available under the law. An anti-establishment viewpoint does not prevent a party from utilising establishment mechanisms in order to further their view” (at 5). From Pest Control’s perspective, Banksy did not undertake his legal manoeuvring in bad faith. The artist was provoked by parties exploiting his alleged inability to “enforce unregistered trade mark rights and copyright without prejudicing his public persona or business interests” (at 5).

The EUIPO’s Decision

The EUIPO agreed with FCB, finding that the Flower Thrower mark was filed in bad faith. The Panel acknowledged the hurdles the artist would face with copyright, but based its decision on his use of the trademark. After scrutinising the artist’s intentions and the mark’s brief commercial use, the Panel determined that Banksy’s actions were “inconsistent with honest practices” (at 15). He clearly intended “to obtain […] an exclusive right for purposes other than those falling within the functions of a trade mark” (at 15).

The Panel’s decision prompts questions about the IP protections afforded to anonymous and pseudonymous personae. The law recognises anonymous and pseudonymous forms of authorship as legitimate conduits to rights; however, it incentivises, or pressures, authors to make themselves known. Assuming that Banksy can claim copyright, thereby dodging the need for trademark, the law appears to insist that he exchange his name for standard, let alone preferable, copyright terms. Notwithstanding any policy that might justify this scheme, Banksy’s general criticism of copyright appears apt. Copyright might not require artists to surrender their names, as Banksy has recently suggested, but it rewards those who do with better terms.

Written by Halyna Chumak, JD Candidate 2021, enrolled in Professors D’Agostino’s and Vaver’s 2020/2021 IP Law & Technology Intensive Program at Osgoode Hall Law School. As part of the course requirements, students were asked to write a blog on a topic of their choice.

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