It’s no secret that Greta Gerwig’s Barbie (featuring Margot Robbie in the titular role) has been tremendously successful. As of mid-August 2023, the film has earned $1.18 billion at the box office, smashing a number of records in the process.
This might all seem a world away from seemingly dry legal concepts such as those found within Intellectual Property (IP) textbooks, but the successful implementation of concepts such as copyright, trademark and patents has been a huge part of creating and protecting the Barbie brand over the years. This article takes a look at some of the doll’s biggest IP moments throughout its complex history in the legal arena.
Barbie’s very creation was rooted in contentious matters of IP. Ruth Handler introduced the eponymous doll in 1959, and openly admitted that its design was inspired by the pre-existing Bild Lilli doll range. The owners of that brand, Greiner and Hausser, sued for infringement, which saw Mattel settle the case with a $21,600 payment in 2003 – widely viewed as a shrewd move later on considering how big the brand has become. Part of this deal included the sale of the copyright and patents for the doll, which Mattel would go on to grip with an iron fist, licensing it selectively and exclusively.
Anyone who’s studied copyright in the past will be aware of the ‘fair use’ exception. In short, copyright protection is not enforceable in a limited number of circumstances, including:
When the band Aqua released their track ‘Barbie Girl’ in 1997, Mattel attempted to sue – they objected to their brand name being used and the song’s lyrics, which were widely viewed as overtly sexual (not in keeping with the brand’s child-friendly image). However, the court ruled in 2002 that the ‘Barbie Girl’ track was simply a parody, and thus exempt from being accused of infringement.
Mattel exploit their Barbie IP regularly through a number of licensing agreements, whereby they allow other organisations to produce merchandise using the Barbie name (in exchange for financial benefits which often include initial lump sums and a cut of all profits generated by the collaboration products). For example, Barbie has her own range of NYX makeup, Crocs, and even UNO cards!
Watching the 2023 Barbie movie without being aware of the overwhelming visual persistence of the colour pink is completely impossible. It creates an engaging, dream-like world within the movie which viewers subconsciously associate with the Barbie brand. Even the film’s opening track on the soundtrack album is titled ‘Pink’.
It might be interesting to note, then, that Mattel actually maintains a kind of protection on a specific shade of pink. Now, this is not a clear-cut fact – while Tiffany & Co holds a specific shade of blue (Pantone 1837) for jewellery products, for example, Mattel does not explicitly hold a registered colour trademark for Barbie. However, trademark rights are garnered through use rather than simply by registration, and Barbie has been consistently using Pantone 219C for some time. Many believe that it has reached ‘distinctive’ (a key word in IP contexts) status amongst consumers as a result.
Mattel are unlikely to enforce this idea of a colour trademark by itself, as it is widely believed that this would be a rather tall order to win a case by alone. However, in 2022, while suing Rap Snacks for a potato chips line utilising the word ‘Barbie’ (the main focus of the case), one of their supplementary points did outline the colour conflation (the snack brand was using a very similar shade of pink) as a way to support their overall case.
One of the lesser known of the IP concepts, trade secrets rarely stand alongside the ‘big three’ (copyright, trademark and patents) within the public consciousness. However, Mattel did sue for misappropriation of trade secrets in 2004, claiming that a former employee had gone on to create the hugely successful Bratz line with insider knowledge of the Barbie ecosystem. Mattel initially won, but MGA Entertainment (the company which owns Bratz) later won at a retrial in 2010. Both parties spent more on legal fees than they won at any point in the trials, however, which points to pertinent issues of legal rights versus commercial sense.
As a doll, Barbie contains a number of physical elements which have been subject to numerous patent filings. For example, a 1961 patent on ‘doll construction’ outlines specific dimensions related to the build of the Barbie figurine. Later patents focused on elements such as rotating hips, and even a voice box.
Law firms are increasingly interested in evaluating the commercial knowledge of their future lawyers. Applying for training contracts or vacation schemes, for example, you’re likely to be tested on your commercial awareness skills during interviews. Having specific examples to draw upon, such as Barbie, can be invaluable in demonstrating your knowledge of practice areas such as IP, especially if applying to a firm with a known specialism in that area (think Bird & Bird or Bristows).
Sometimes it’s especially useful to think of these issues in a commercial, rather than legal, context – for example, while your client might be entitled to sue someone for infringement, it’s worth weighing up whether it makes sense (in terms of business implications) to actually do so, rather than rectifying the matter with an aptly worded letter.
Barbie’s turbulent IP history demonstrates some excellent lessons about the intersection of law and business as a whole.
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