WHEN the news broke earlier this month that the famous, and more or less anonymous, graffiti artist Banksy was setting up a "pop-up" shop in Croydon as an exercise in protecting intellectual property rights, much surprised comment ensued. Banksy's whole schtick, as it were, is to be a rebel against the corporate art world that cares about such things as sales or merchandise or intellectual property.

A company apparently based in North Yorkshire, Full Colour Black, which described itself as selling the world's biggest selection of Banksy greetings cards, had provoked the reclusive artist to action to defend his rights.

Banksy could have taken action for infringement of copyright in the images used, as unlike sculptures and buildings, graphic artworks are still protected by copyright even if displayed in public places.

That, however, would have involved recanting his famous quote "Copyright is for losers", and also, in all likelihood, disclosing his identity.

Instead he seems to have chosen to claim infringement of his trade mark. However, if your trade mark is not used for five years, it can be invalidated, and that's how the battle began. Because a trade mark isn't "used" by being an artwork, or just by being depicted on a poster.

It is used, in the important sense, when it is used to identify who the source of the products or services is.

The argument is that Banksy hasn't used his trade mark in this crucial sense - so he set up a shop to do that, and gained some great publicity. The result was a combination of a real world pop-up and an online shop which was an artwork in itself.

How this battle will end, time will tell. But the moral of the story is this: intellectual property is a complicated business, but sooner or later even the unlikeliest people recognise its value.

For further help or to discuss this article in more detail, please contact Head of Intellectual Property and Commercial Law, Clive Lawrence on 01904 611411 or clive.lawrence@luptonfawcett.law.