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The significance of trademark protection and enforcement considerations are crucial, particularly where consumer preferences constantly evolve and brand loyalty can make or break a product's success. This is evident when global brands, such as Barbie, extend beyond their traditional toy offerings – exemplified by Heinz's recent collaboration with Mattel to introduce Barbiecue sauce – which can present significant marketing opportunities, but also underscores the necessity for comprehensive trademark protection strategies. Gareth Jenkins, partner, and Graeme Murray, senior associate at Marks & Clerk, shed light on what the food and beverage industry can learn from Heinz's collaboration with Mattel. Nearly a year on from the 'Barbie-mania' that characterised the summer of 2023, Heinz has launched a new limited-edition product: Barbiecue sauce. As Barbie herself turns 65 this year, the food processing giant is capitalising on the buzz generated by the Barbie brand and the associated consumer awareness and demand. The Barbie movie hit $1 billion in global ticket sales within two weeks of its release last year, and in doing so, brought the ubiquity of the Barbie brand into sharp focus. The huge marketing campaign conducted by Mattel included licenced partnerships with other well-known brands, and the buzz also presented an opportunity for third-party businesses to piggyback on the attention the movie generated. In 2023, Brand Finance valued the Barbie brand at $700 million and placed Barbie in fourth position in its Top Toy Brands list, with only Lego, Bandai Namco and Fisher-Price beating them to the top spot. The value of the Barbie brand is intrinsically linked to the vast commercial opportunities available to Mattel, which has seen them sign licensing deals with over 100 third-party brands.

The secret sauce behind Barbie’s longevity Mattel owns over 1,000 registrations globally for Barbie trademarks for a broad range of goods and services in addition to its core product range of toys and playthings. The interests of the Barbie brand go above and beyond the doll itself and this is reflected by Mattel’s trademark portfolio. However, the specifications claimed in their registrations do not show a blanket “register for everything” approach. Rather, it has considered the goods and services that are of most commercial importance to the business, bearing in mind licensing opportunities in addition to its own use, and has secured rights for those goods and services accordingly. This is a sensible approach, given the cost associated with protecting such a well-known brand globally. It is important to have a strategy in place that identifies goods and services of genuine interest to a business, bearing in mind potential future partnerships, such as the recent collaboration with Heinz, so that rights are in place as early as possible. Filing too broadly for goods and services in relation to which the brand will not be used may fall foul of intent-to-use requirements in certain territories, and can also leave registrations vulnerable to cancellation on the grounds of non-use. The Barbie pink colour that is used by Mattel is also of immense value, think the colour purple for chocolate. However, it is interesting to note that Mattel does not yet own any registered rights to the colour per se, based on acquired distinctiveness, and yet, on the face of it, the company would arguably have significant evidence to reflect that the specific colour pink is immediately associated with Barbie, at least in relation to toys and dolls. Regardless of the lack of registered rights, Mattel could still object to use of the specific pink by third parties in circumstances based on the vast amount of goodwill that they enjoy in the colour – so it is unlikely that Heinz’s rival food producers will be able to replicate the colour of this new sauce.

Creative brand opportunities for the food and beverages sector Mattel has historically taken an aggressive approach to the defence of its Barbie brand. In 2022, Mattel sued Rap Snacks after it launched a range of Nicki Minaj “Barbie-Que” potato chips. The case, also filed in the U.S. District Court for the Central District of California, has subsequently been withdrawn by Mattel, and Rap Snacks appears to have changed the name of the product to “Bar-B-Quin”, which does not replicate the Barbie mark in its entirety. There are arguments that Mattel would have succeeded, on the basis that consumers would perceive the potato chips as a product produced with Mattel’s consent. There may have been some counter-arguments available to Rap Snacks, as Minaj is known as “Barbie” to her fans, so there is an argument that consumers would understand the use as a reference to her. In this case, we are dealing with tangible products, where there is an arguable risk of consumer confusion and it is within this paradigm that Mattel now appears to be focussing its high-profile complaints. Outside of the world of Barbie, food and beverage brands are becoming increasingly creative when it comes to the collaborations they’re using to promote their brand. Back of the success of Games of Thrones in 2019, Diageo entered into a partnership with HBO and released a collection of limited-edition Game of Thrones whiskies, which proved successful and are still available. More recently, Ballantine’s decision to collaborate with Borderlands to gamify the release of a new limited-edition product, Moxxi’s Finest Scotch Whisky, is aimed at capturing a new, younger audience of gamers to the world of whisky. The huge success of the marketing campaign by Mattel and the movie itself, alongside the large number of licensing deals in place between Mattel and third parties, will only serve to increase the success of the Barbie brand as a whole and it will be interesting to see if the range of food & beverage goods utilising the Barbie brand continues to grow – particularly ahead of this year’s Barbie-cue season.