Could the famous "Barbie Pink" be protected as a color mark?

Monday, 7 of August of 2023

Although non-traditional trademarks are no longer a novelty, they continue to be the subject of constant discussion and analysis. 

Because although words (including personal names) are the signs usually protected as trademarks, it is still curious, and at the same time complicated, that other kinds of distinctive signs, such as mere colours, product shapes or sounds, can be registered.

In particular, both in the European trademark office, as well as in the Spanish trademark office, according to Directive 2015/2436, in addition to the classic types of marks (word, figurative and graphic), other types of marks which may be applied for include position marks (which protect the way in which the mark is placed or appears on the product), pattern marks (a set of elements that are periodically repeated) , motion marks (which include a change in the position of the elements of a mark), sound marks (consisting exclusively of a sound or a combination of sounds), multimedia marks (a combination of images and sound), holographic marks (composed of elements with holographic characteristics) and colour marks (consisting of a single colour or combination of colours, without contours).

These types of signs do not conform to the graphic representation parameters of conventional trademarks and, generally, are not perceived by the public as trademarks, since they are not sufficiently distinctive. However, the evolution of marketing has made it possible for some companies to position them as indicators of the commercial origin of their products and services and, therefore, they fulfill the function of a trademark and can be protected as such.

Examples of this type of registrations are the well-known melody of Nokia phones, the movement that describes the Dropbox platform's box logo when it is opened or the position of the classic Munich X on the side of its sneakers, all of which are protected as trademarks of the European Union.

Likewise, there are colours that have become so strongly associated with certain products that they have achieved sufficient distinctiveness to be recognized as a trademark, such as the famous yellow colour of Post-it notes, the violet colour of Milka chocolates or the recognizable "Tiffany Blue."

But if there is a colour that is flooding the streets these days, that is, without a doubt, "Barbie Pink".

Just as it has not gone unnoticed by anyone how Margot Robbie, star of the blockbuster film, posed on the red carpet (or would it be more like pink?) with her high ponytail, making the shadow that was projected on the photocall identical to the iconic silhouette of Barbie, there is no one who has remained oblivious to the pink tide that has unleashed the premiere of her film.

However, despite the fact that Mattel's Barbie universe is widely protected in terms of industrial property, from the first patents filed in the United States for the articulated doll to numerous designs and trademarks for its accessories, cars, mansions, etc., Mattel does not yet have a colour trademark that protects the famous "Barbie Pink" at European level.

But could the colour pink used on Barbie toys qualify for registration as a non-conventional trademark in the European Union?

For a sign to be registered as a trademark, European legislation requires that two main requirements be met: (i) it must serve in the market to distinguish the goods and services of one company from those of another and (ii) it must be capable of being reproduced in the register in a clear, precise, durable and objective manner.

Well, the combination of pink and magenta used in Barbie toys corresponds to Pantone 219C and, therefore, is classified by an international colour identification system that allows it to be registered clearly and to remain unalterable to the passage of time, the quality of the screens or the subjectivity of the public.

As for its ability to unmistakably evoke Barbie, one need only refer to the promotion of her new live-action movie. Several companies have launched collections of clothing and accessories in collaboration with Barbie, dyeing their windows in her unmistakable pink colour, and many fans of the doll have even attended the premiere dressed in that colour.

It is such a recognizable and familiar shade that, in some countries such as the United States, the movie has even been promoted with huge pink billboards that did not show any image or message, just its characteristic colour. And true Barbie collectors will know that Mattel, in collaboration with the Pantone company, launched the incredible "Pink in Pantone Barbie doll", which wore a pink bodice with a skirt made up of a bunch of cut-outs of Pantone pink Barbie.

Could the movie's momentum be what Mattel was missing to trademark its unconventional sign? We'll have to wait and see if Barbie leaves her mark, not only at the box office, but also at the European trademark office.

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