Greta Gerwig’s cinematic adaptation of Barbie saturated the summer of 2023 in pink. The film’s advertising and public relations campaign by Mattel ranged from placing architectural features of the Barbie Dream House in Architectural Digest to social media filters allowing users to create Barbie-inspired likenesses. Pantone 219C, “Barbie pink,” was consistently used, raising a hypothetical trademark question: How might Mattel recover damages from another brand’s use of Pantone 219C?
Color, Trademarks, and Barbie
Color may be trademarked when it identifies the source of goods or services. T-Mobile holds trademark rights for its magenta color in telecommunications services, Tiffany & Co. owns trademark rights in its robin’s-egg blue packaging, and UPS holds trademark protection for its “Pullman brown.” These colors signal a source within a commercial context.
Mattel does not hold a registered trademark for Pantone 219C. The company filed three trademark applications for the color, which were ultimately abandoned. As Barbie became one of the highest-grossing films of all time, in the absence of a registered color trademark, could Mattel prevent a third party from capitalizing on the color’s association with the brand?
Mattel’s History of Enforcing Barbie-Related Rights
Mattel has actively defended Barbie-related intellectual property. The company filed suit against Rap Snacks over its “Barbie-Que” potato chip line associated with Nicki Minaj in 2022, and in 1997, Mattel sued MCA Records, which represented pop group Aqua, over the hit song “Barbie Girl.” The chip lawsuit was settled out of court, and the pop song case concluded with an appellate court ruling that the song was a parody, rejecting Mattel’s trademark infringement claims.
Consumer Surveys and Color Trademarks
Trademark infringement disputes, including disputes about color, frequently include consumer perception evidence. Plaintiffs may be able to argue for a likelihood of consumer confusion if they demonstrate that a color has acquired secondary meaning, or that a color is a signal of commercial source. Secondary meaning surveys evaluate whether a color or design element functions as a source identifier. Likelihood-of-confusion surveys may also be used when a plaintiff alleges that consumers believe a product is produced, sponsored, or affiliated with the wrong trademark holder.
Time, Proximity, and Market Context
Could Mattel establish infringement without a registered trademark? If infringing use occurred in a closely related market—for example, if another doll manufacturer were to use Pantone 219C in packaging for a competing doll—survey evidence may be used to assess secondary meaning and consumer confusion.
Market context and proximity are important contexts in likelihood-of-confusion surveys. When products are marketed to the same consumer demographic, sold in the same retail environments, and displayed in similar locations, courts may be more likely to find infringement. When Barbie-related marketing appears all summer, consumers may be more likely to recognize Pantone 219C as related to Mattel’s Barbie specifically.
In the 1997 pop song litigation, the trial court dismissed trade dress misappropriation claims, in part because of the widespread, non-exclusive use of pink. However, in the commercial landscape of 2023, with such widespread visibility of Barbie, a different outcome is possible.
Survey Evidence in Color Trademark Disputes
Color-based trademark disputes may include surveys measuring consumer perception, including surveys measuring secondary meaning and likelihood of confusion. Properly designed surveys can provide insights into how consumers interpret indications of product origin. The Litigation Surveys and Consumer Sciences team at IMS Legal Strategies designs and executes defensible consumer surveys supporting trademark enforcement, defense, and damages analyses. Contact IMS Legal Strategies for reliable consumer perception research.
