Branksy loses another brand By bad faith registration?Virtual fashionistas: how to protect untouchable fashion?

 In Decision of 18.May.21, the European Intellectual Property Office EUIPO has annulled another Trademark / image of Banksy, the famous “graffiti artist”: his jumpsuit with a sign that says “Laugh Now But One Day We'll Be In Charge ”(“ Laugh Now But One Day We Will Be In Command ”).

This EUIPO decision follows the cancellation of another Banksy trademark: “Flower Thrower” (“Throwing Flowers”), a few months ago.

Banksy, had registered his Mark of the monkey, in 2018. FULL COLOR BLACK, a company of postcards based on images of street art, requested its invalidity due to bad faith. Banksy would be seeking to circumvent the regulations on Intellectual Property, which requires knowing the identity of the author of the work, to protect an image by Copyright.

PESTO CONTROL, Banksy's rights agent, argued that there is no bad faith in registering a trademark, to legitimately prevent others from taking advantage of it. Banksy registered it, so that FULL COLOR BLACK would not use the image created by Banksy: he knew that Banksy could not protect it as Intellectual Property, because he is an anonymous author.

The EUIPO has annulled the Mark, because it was registered in bad faith. He denies that Banksy had "legitimate reasons" for registering it. He only registered it, because he could not defend his signs, as Intellectual Property, since he wants to remain anonymous. And the rules on Copyright require that the author of a work say who he is: do not remain anonymous.

The EUIPO says that it is not the role of Trademark Law to help anonymous artists circumvent the requirements of Intellectual Property laws.

Consequently, EUIPO annuls Banksy's trademark, due to bad faith registration.

Fashion is characterized by its versatility as it is capable of adapting to each era and evolving over time. We are living in the revolution of the intangible: social networks, 'online' purchases, greetings through a screen, audio messages and meetings through a platform. Now it's the turn of fashion. Fashion that can be bought but not touched.

When my grandmother wanted a new dress, she would buy the fabric and then go to the dressmaker to have it made for her. My mother went one step further: she would go to a store and there, after trying on the garment that best fit her, she would buy it and take it home. Our generation is already used to doing this online search and receiving the product at home. However, our children - technological natives - will no longer see this last step as necessary.

They will only need a file to reach their mobile that allows them to download the garment for use in the metaverse, that is, in the virtual world. In this way, when your digital "me" attends an online class or chat on social networks, you can choose which shirt to wear from the ones you have stored in your digital closet.

At this point, the reader might think that we are writing about fiction but the truth is that intangible fashion is already here and has come to stay. Nike's CryptoKicks shoes carry a digital asset, with a unique identifier, which also allows the digital version of the shoe to be marketed. For this, Nike has granted a patent in the United States.

For its part, Dolce & Gabbana has put purely digital creations up for auction, through its impressive Collezione Genesi NFT; examples of it are the Impossible tiara or the Mosaic jacket that has reached a sale value of more than 250,000 euros.

The auction of NFT (the acronym in English for non-fungible 'tokens'), which we already talked about in this post, made up of wearable digital art pieces, has been a revolution in the brand sector. Just as online fashion revolutionized the market, digital fashion - which cannot be touched - will do the same.

Consider, for example, influencers, what need would brands have to deliver their product ambassadors in physical format if by simply sending a file they could wear the jacket and promote it in their Instagram stories as if it were will they wear?

Let's also think about those pieces that the big luxury brands take out in collaboration with others and that are really almost objects of art. Why can't we have a virtual closet in which to collect them and share them with others simply through a link?

How to protect virtual creations

The question that arises is how to protect these virtual creations. From a technical point of view, blockchain technology may have the answer since it would ensure the download of the product and its traceability, even allowing its exchange (let's think about the sale of second-hand digital items). Depending on the price paid for the file, its reproduction could be unlimited or subject to conditions.

On a legal level, the Intellectual Property Law can help us. Article 10 of the aforementioned rule provides that "all original artistic creations expressed by any means or medium, tangible or intangible, currently known or that will be invented in the future, are the object of intellectual property." Therefore, the rule provides that a work can be expressed by an intangible medium, that is, it cannot be touched.

We would be attending a much more sustainable fashion since it would not accumulate textile waste and the consumer would have the option to choose if the product you want to wear in the physical world or just to show it off in the digital world.

It goes without saying that trademark and design regulations, as well as unfair competition, provide protection for such products. Thus, for example, the Trademark Law expressly provides that the use, by a third party, of an earlier trademark, "in telematic communication networks", would be an infringement.Image rights of avatars

Let's go furthzer. Let's think that the day will come when when we connect to a video conference, the option is not only to think about whether or not to connect the camera, but we can also choose to have our avatar attend the meeting, yes, dressed appropriately with the garments that we have chosen for the occasion –just like now we choose the wallpaper that accompanies us to the meeting–.

The legal protection of avatars is not without controversy either. To create a hyper-realistic avatar, it is necessary to capture the person with multiple cameras and scanners from all angles to be able to perfectly recreate their features, movements and facial expressions, in such a way that the real image matches the virtual one as much as possible.

In this case, the protection of the rights s image and its exploitation is a challenge that will lead us to complex contracts in which it is stipulated what the avatar can do, for how long, in what way and, in what concerns us here, dressed in what specific garments. In any case, we bear in mind that if the image of the avatar is recognizable with that of a natural person, it would be necessary to obtain their authorization for the exploitation of the avatar.

In summary, it seems that the children's story The Emperor's New Suit is getting closer and closer to reality, since we have fashion that cannot be touched but can be seen by all those who believe in it and are willing to wear it or simply , to save it on your mobile to show it.