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Comment by em-bee | Hacker News Reader

can someone please explain the trademark law that forces banksy to do this?

i know that not defending/protecting a trademark can cause you to loose it.

i also understand that trademarks are limited to categories, which is why we can have "LINUX" washing powder. but that washing powder is not pretending to sell Linux Software.

whereas this banksy merchandise is in my understanding rather clearly pretending to be banksy artwork.

how is that not obviously infringing on his trademark?

why would banksy be forced to sell his own merchandise to protect his trademark?

i thought the point of a trademark was that it must not be confusing.

LINUX washing powder is not confusing. banksy merchandise is. or am i missing something?

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I am not a lawyer first of all but this is my understanding: If you buy a greeting card with Banksy art on it do you think you are getting an official licensed print? The greeting card company here says no, you aren't confused, because Banksy doesn't sell official merch. By selling official stuff he is fighting back saying he certainly is selling official stuff (now) and the card company selling cards with his art can be confused for something he endorses.

so if disney didn't sell merchandise using their characters, i could do so myself without impunity? i find that hard to believe.

if i buy a banksy greeting card then i most definitely assume that it is licensed because i would not consider that they'd be allowed to do so without licensing.

if that is the issue though, wouldn't it be enough for banksy to put a price on the license?

you want to sell banksy greeting cards, you need to get a license from banksy. he just needs to put the price high enough to make it worth his while, and/or to make it unprofitable for the would-be licensee.

At least in the US, trademark law is use it or lose it. If you are not selling products bearing your trademark, you are not actually engaging in "trade" with your "mark."

Copyright law is automatic, but it does complicate things if the original author of a copyrighted work is unknown or difficult to contact. For licensing, you need a name and address of an entity to license from. The whole idea behind Banksy's art is that he's anonymous, so precludes the idea of licensing his work.

> you want to sell banksy greeting cards, you need to get a license from banksy

That is exactly the sort of thing opening a store with tangible goods will allow.

the store allows me to sell my own products. i should not need a store to sell you a license to use my trademark.

banksy is using his mark, and so is disney. i am making the difference between disney movies and disney merchandise. how would disney merchandise not infringe on disney movies if they are created by independent companies without permission?

From article:

>Banksy is in a difficult position,” he said. “Because he doesn’t produce his own range of shoddy merchandise and the law is quite clear – if the trademark holder is not using the mark, then it can be transferred to someone who will.”

how is he not using the mark? he is creating artwork, is he not? why is that not enough?

A trademark is just what the word says, not more. If you don't trade, your name is outside the scope "trade".

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