As Milan Fashion Week launches, the Barbie phenomenon continues to inspire with ‘The Barbie Style Talent Contest’ hosted by Le Salon de la Mode designed to bring 'Barbiecore' to the catwalk.
The continued focus on Mattel’s brand raises interesting points about the benefits of official collaborations and the risks of ambush marketing tactics, as well as unlicensed products flooding the market.
Collaborations are prominent at fashion weeks and afford brands the opportunity to engage with more unusual partners (for example, the surprising pairing of Burberry and Norman’s Cafe at London Fashion Week) but extensive collaboration can also lead consumers to confuse officially and unofficially licensed products.
Here, intellectual property expert Natalie Hardman explains what brands need to think about before entering into official partnerships — and what actions are available in the event of their rights being infringed.
Barbie collaborations
Since Barbie hit the big screen earlier this year, it has become Warner Bros.’ highest-grossing film of all time, making over £1.1bn globally. An extensive marketing campaign led up to the film’s release and sparked a significant number of both official and unofficial brand partnerships.
Mattel (the owner of the Barbie™ brand) has certainly been active in putting its fashionable foot forward through clothing collaborations including Gap x Barbie, Zara x Barbie, Emu Australia x Barbie and Barbie x Impala.
Such co-branded products have helped Mattel to reach new audiences while keeping the use of the Barbie brand consistent among approved third parties, such as the specific stylisation of the Barbie mark and the ‘Barbie pink’ that has become iconic and recognisable.
Why do brands collaborate?
Brand collaborations are an effective way to provide two (or more) brands with an opportunity to share their success, diversify and expand market reach. These arrangements must be carefully documented in a contractual agreement to define the parameters of how each brand can and should use each other’s intellectual property.
The boundaries of brand collaborations should be expressly set out and agreed before production starts on any collaborative retail merchandise and marketing campaigns, or before any use of the other party’s brand so as not to risk brand infringement.
What goes into an official brand partnership?
Before entering a collaboration, brands must consider issues such as:
- Marketing and advertising spend — how will it be dealt with and what funds are each party putting towards the collection?
- Approval processes for advertising and product sign-offs.
- Profit splits — if royalties are due under the agreement, how are these calculated, split and paid?
- Intellectual property rights — who takes ownership and what specific rights are licensed from each party?
- Infringement — what controls are in place and which party will deal with complaints, actions or other issues that may arise.
- Exclusivity — are parties able to enter into other relationships of a similar nature or should restrictions be implemented?
While this list isn’t exhaustive, these are a few examples of what should be addressed in the contractual arrangement that governs the legitimate business relationship and interests of all parties during the term of the collaborative venture.
What is ambush marketing?
Ambush marketing is an attempt by a third party that isn’t officially or formally connected with a brand to associate itself with that brand in order to benefit from its goodwill or prestige. It enables brands to gain exposure without having to pay for the privilege or jump through the hoops that an official collaboration partner would face. This can cause detriment to entities that have official agreements in place and can reduce the value of such collaborative packages.
The most blatant examples of ambush marketing may involve an infringement of intellectual property rights (such as trade marks, copyright, design rights, passing-off or unfair competition).
Advertisers must be wary when using any third-party intellectual property rights without the right holder’s permission. They should also avoid imagery, names or other material that could directly or indirectly imply a relationship.
Many advertising campaigns are using the Barbie brand without any official arrangements with Mattel. Yet ambush marketing can be difficult to define in terms of whether an activity is commercially acceptable. In the majority of cases, there is a very fine line between a cleverly worded or put together advert and an infringement.
Sanctions for ambush marketers
If an infringement has taken place, rights holders can take action. Possible sanctions include suing, prosecuting or having injunctions, monetary fines or compensation ordered, which could lead to negative publicity and be extremely costly. This is counterproductive, given that the advertiser was likely seeking to avoid the costs of acquiring a licence from the brand owner in the first place.
Yet despite the risks associated with ambush marketing campaigns, many brands still take their chances. Where Barbie is concerned, taking action against infringers is a difficult and global exercise, due to the enormous success of the brand. It will be interesting to see what enforcement action Mattel takes against third party infringers to protect the iconic Barbie brand.
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We have extensive experience in advising on collaboration agreements as well as intellectual property enforcement issues and ambush marketing.
Whether you are looking to enter into a collaboration or take action to protect your rights, talk to us by completing our contact form below.
