A Trademark application may still prove problematic.
Dismaland v Disney Land Trademark
UK Copyright provisions allow some parodies that may save Banksy’s “Dismaland” exhibition from infringing Disney’s intellectual property rights. A Trademark application however may still prove problematic.
The park, situated in a former outdoor swimming pool in the English town of Weston-super-Mare, in Somerset, features a rundown Disney-style castle as well as several other art exhibitions, some of which are takes on Disney characters.
The small print on the Dismaland website rather amusingly states: “The following are strictly prohibited in the park – spray paint, marker pens, knives and legal representatives of the Walt Disney Corporation.”
In October 2015 UK Copyright law introduced parody, caricature and pastiche as a defence. This means that infringement may be avoided by fair dealing in the work for those purposes.
“Dismaland’s position is likely to be that its use is evoking the existing Disney copyright work but it is not identical and is different from it, as well as constituting mockery or humour.”
The art exhibition will only last for 5 weeks and it maybe that Disney does not challenge due to ‘PR’ reasons!
A trademark application may still face problems. A UK Trademark and EU Trademark last for 10 years and Disney may decide to oppose. Earlier this month a Community trademark (CTM) application for the term was filed at the Office for Harmonization in the Internal Market.
It is not known if the application, filed by a UK-based company called Dismaland Limited, is connected to Banksy but the application covers goods and services including art exhibitions.
“The CTM application, which appears to have been filed by a firm presumably controlled by Banksy, is maybe a different matter,” said Curtis. A Trademark application moves them away from the defence of art and towards commerce. Disney may in these circumstances oppose the application to avoid a dilution of their branding. One could argue Dismaland is competing with Disneyland as an attraction.