Accumulation of protection is not always as easy, especially if you want to avoid revealing your identity, as in Banksy's case. Moreover, the problem is even more controversial if you want to protect art works. It is obvious that if Banksy wants to protect his work via trademark, genuine use of the trademark over the last five years of registration is certainly a main factor to take into account (i.e. the creation of the shop, however created too late for the trademark of the Flower Thrower). However, this is the only way to keep his real identity safely hidden/anonymous, as in Copyright proceedings a lot of burdensome evidence would be needed to be produced, among which, the identity of the copyright holder.
Has Banksy learnt the lesson and, through the recently opened shop, will Banksy now be able to prove use in the future for his registered trademarks?
The EUIPO found that “it is clear” that, when the Proprietor applied for the registration of the Trademark, it did not have any intention of making genuine use of the sign to commercialize goods or provide services. Indeed, as clarified by the Decision, [...] “It must be pointed out that another factor worthy of consideration is that he [Banksy] cannot be identified as the unquestionable owner of such works as his identity is hidden; it further cannot be established without question that the artist holds any copyrights to a graffiti. The contested EUTM was filed in order for Banksy to have legal rights over the sign as he could not rely on copyright rights, but that is not a function of a trademark”.