Barbara Millicent Roberts. Never heard of her? That’s because we all know her as Barbie, the 64-year-old doll who has once again captured the attention of young and old thanks to the Barbie movie that was recently released. In a world brimming with ground-breaking marketing strategies, the team behind the recent box-office hit knocked it out of the park with an enormous $150 million marketing budget. The campaign triggered a global pink tsunami and not surprisingly, everyone wants to ride the wave and leverage the Barbie brand.
The Barbie Brand
Many across the world have seized the opportunity to leverage the Barbie brand’s magnetic allure to amplify their visibility and increase engagement with their customers. Burger King Brazil is offering a burger dressed with a bright pink sauce as part of its BK Barbie Combo while Airbnb is advertising a stay in Barbie’s Malibu DreamHouse – an oceanfront mansion in sunny California. Some local retailers that are currently offering officially-licensed Barbie merchandise include Zara, Cotton On, Kipling, Ackermans, Mr Price, Aldo and Build-a-Bear Workshop.
You Have To Pay To Play
To hitch a ride on this wave, traders need to become authorised licensees of Mattel Inc., the owner of the Barbie brand, if they want to be sure to avoid any legal repercussions. Additionally, some form of financial contribution would be required in exchange for being associated with the campaign and brand. These arrangements generally afford traders the right to use the Barbie name, the associated trade marks as well as images and logos of Barbie and her crew.
Inevitably, major events, such the launch of the Barbie movie, a sporting competition, aviation event or music concert, also capture the attention of traders that seek enhanced visibility by skillfully hitching a ride on the coattails of these events, all without official endorsement or sponsorship. This trend is referred to as “ambush marketing”. Examples of ambush marketing range from the unauthorised, blatant use of the BARBIE trade mark and BARBIE logo to mislead customers into thinking that the trader is an authorised licensee on the one hand, but may also take on a less obvious form where a trader suggests that it is connected with the event through misrepresentation.
These promotional tactics are risky and should be avoided as the alignment of one’s brand with a significant event or occasion without an invitation could result in brand reputation vulnerabilities and may potentially even anger consumers. Additionally, serious legal ramifications could follow if the owner of the brand that is being prejudiced takes steps to restrain the offending conduct. For example, in South Africa:
- The unauthorised use of registered trade marks associated with the event/campaign, could constitute infringement of those registered trade marks;
- The unauthorised reproduction or adaption of images or text associated with the event/campaign (works eligible for copyright protection as artistic or literary works), could constitute infringement of the copyright subsisting in those original works;
- The misrepresentation that one’s business or merchandise is that of another, or is associated with that of another, could constitute passing-off under the common law if there is a reasonable likelihood that members of the public may be confused into believing that the business of the one is, or is connected with, that of the other; and
- Unauthorised use of another’s trade mark could constitute counterfeiting of merchandise if consumers are deceived into believing that they are buying original goods.
In addition to the above, there are several other remedies which may be relied on to prevent or restrain the unauthorized association of brands/businesses with popular events or campaigns.
Against this background, while it is certainly tempting to jump on the bright pink bandwagon, it is important to exercise due diligence before launching or advertising one’s own goods or services. At the end of the day, there is only one Barbie girl, and it’s her (legally protected) Barbie world.