Using a barbie photo - taken from a long distance - in my ad!
Hello, I'm using a barbie photo taken from a long distance with blurred faces - to advertise my product; a doll house.
It's impossible to see the doll's face, people can only assume they are barbie dolls, they could be any other brand...) Can Mattel sue me for this?
The particular visual appearance of Barbie dolls is "trade dress" owned by Mattel. The elements of that trade dress are Barbie's long hair, abnormally thin waist, prominent bust, thin arms and legs and, perhaps, aspects of her attire. So the fact that the dolls' faces are blurred in the photograph that you're using is NOT determinative. I think it is likely not true that "people can only assume they are barbie dolls." As evaluated under trademark law, Barbie dolls are "famous" and, therefore, are protected from misappropriation far more readily than other dolls. Moreover, the wrong that trademark law protects against is the LIKELIHOOD of consumer confusion over the source of the product or, in this case, over whether Mattel endorses, sponsors or is somehow otherwise associated with your doll house or your company. So if a consumer after seeing your advertisment photograph "assumes" the dolls are Barbie dolls that is enough for Mattel to bring an infringement claim.
There is an abundance of dolls available that are not protected by trade dress and which, being generic, can be sold by anyone. Your decision to use a photograph of Barbie dolls to advertise your product, therefore, would be found to be presumptively unfair -- or at least sneaky. I strongly suggest that you discuss this with your own trademark attorney and err on the side of NOT infringing and not tweaking Mattel's nose. The potential downside of using the photograph, especially in light of an easily-created alternative, is by far much worse than any potential upside. Not using the photogrpah, to me, is a very easy business decision.
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Barbie has a pronounced figure which is the trade dress of Mattel. Yes they can sue for this use. Use another doll with more indistinguishable figures. If you specifically want the barbie look so people will assume they are barbie, then you are definitely trading on their recognition which is a violation of their trademark. You can even get custom dolls made on 3D printers for a few dollars to use in your ads, then you are completely safe.
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Yes. A Barbie Doll is a copyrighted character. Further, the elements of the Barbie doll shown in the photograph, even with a blurred face, may be protected by trademark or trade dress law. Even if the face is blurred, the portions that you show are likely to lead consumers to believe that the image is a Barbie doll. Once Mattel figures out that you are using this photograph to market your products, it will either send you a cease and desist letter and demand a lot of money to settle, or it will sue you for copyright, trademark, and trade dress infringement and unfair competition. Mattel makes doll houses too connected with its Barbie line of products, and you are directly infringing and taking sales away from Mattel. You would have no viable defense to such a law suit, and you would probably have to pay Mattel for its costs and attorneys fees as well as substantial damages.
In fact, as I sit in my office thinking about this, I am having a very hard time understanding how anyone with a high school education sufficient to run a business selling doll houses could think that it would be legal and appropriate to use this photograph. I am sincerely frightened for your well-being and the future of your business. If you do not understand this basic concept, then my guess is that your business is violating many other intellectual property and legal rights. You need to immediately educate yourself about IP law basics. And you better hire an IP lawyer to review how your business is operating because my guess is that this particular question represents the tip of the iceberg. I also sincerely hope that you have insurance and a substantial war chest to protect you from claims of copyright and trademark infringement.
The short answer is yes, of course. Why? Because using an actual Barbie Doll in your commercial ads for a doll house product can certainly create the false impression that you are associated with Mattel. This would be a misrepresentation claim and our trademark laws allows for such a cause of action.
While it is unlikely that you would be held accountable if as you say one cannot really determine if it is a Barbie or not, if you are not correct in your assessment it can certainly be problematic. Remember, companies like Mattel have lawyers employed full time to police their marks and other IP.
I would suggest using a doll made from a more generic maker and not an aggressive large famous brand like Barbie. This should accomplish the same end without the risk however slight.
You may want to discuss your plans and objectives over with a lawyer in more detail. Most of us here, including myself, offer a free phone consult.
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Anyone can sue anyone for anything or nothing at all. Take it up with the founding fathers. That said, while I would generally caution against Mattel as an adversary in court on things infringement-related, here, if you are not displaying their marks or logos, but mere photos with what sounds like out-of-focus backgrounds/drops containing what happen to in fact be, Barbie Dolls, but you are correct, while Barbie is strong enough to have that sort of brand attachment such that that is the first thing that comes to mind for most, there is absolutely no indication (from what I'm hearing) that you are intending to unfairly compete in a way that is actionable under the Lanham Act. With no words or marks, their can be no infringement, as the existence of a valid trademark and/or copyright - which just happens to be a necessary prerequisite to an infringement claim. Of course, notwithstanding many details I cannot know or respond to in such a forum, it sounds like you should be totally fine so long as you follow through with your plan as stated, and heed the advice offered in response by the lawyers here on Avvo.
Keep away from depicting ANY of their trademarks, servicemarks, logos, products, packaging, trade dress or using any other confusingly similar trademarks or substantially similar copyrights . Mattel has some of the best IP counsel in the biz, and the big boys will sue you to send a message - a costly one in almost every event - and wholly irrespective of merit. This is one way branding and the recent apparent rise in interest in branding manifests and finds its way into the courts. Chestbeating, territorial - who can maintain the Buffalo Stance ... (great song). BUT tangents aside all else being equal your idea does not appear at first blush to raise any serious IP/infringement-related concerns, then again, I have not seen these photos so its rather difficult to say for sure.
Anyhow, hope this little blurb helps!
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If people can ONLY assume they are BARBIE dolls [note BARBIE is not "barbie", it's a world famous trademark - by far the most famous doll trademark in the world] people can ONLY assume you are committing trademark infringement and can ONLY assume you should be subjected to the remedies outlines in 15 USC 1114+. What are those? Perhaps all your profits, an injunction, all Mattel's attorney fees, damages to Mattel and on top you have to pay your legal expenses. Budget about $750,000 for this if you are doing what I think you are doing and if you don't stop. On the other hand, you might save the $750,000 and use a generic doll figure. Consider this - Why are you using a BARBIE doll and not some other doll? I think you know the answer and that is why you are here asking. If it is close enough you have to ask, it is way too close for comfort.
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I am not your lawyer and you are not my client. Free advice here is without recourse and any reliance thereupon is at your sole risk. This is done without compensation as a free public service. I am licensed in IL, MO, TX and I am a Reg. Pat. Atty. so advice in any other jurisdiction is strictly general advice and should be confirmed with an attorney licensed in that jurisdiction.