Unless you are living in a bubble, you undoubtedly have heard the term BARBENHEIMER, which refers to consecutively watching the movies BARBIE and OPPENHEIMER. Both movies were released on the same day in late July and both are proving to be juggernauts at the box office, both domestically and internationally.
I couldn’t help thinking about these movies from an intellectual property standpoint. It seems to me that in BARBIE the famous BARBIE brand/trademark predominates, while the movie OPPENHEIMER, which in large part deals with the development and technology of the atomic bomb, is far more patent oriented. So, let’s take a closer look.
The BARBIE Brand
Mattel, as the owner of the BARBIE brand, is well known to be very aggressive in enforcing its trademark rights.
For example, Mattel previously sued to stop the “Barbie Girl” song. The Danish band Aqua produced and released the song “Barbie Girl” back in 1997. As the song gained in popularity, Mattel sued MCA Records, Universal Music International, and several other entities involved in distributing the song. The lawsuit claimed both trademark infringement and dilution. On summary judgement, the claims of Mattel were dismissed. The trial court concluded that the song was clearly a parody. The trial court also found the song was neither likely to dilute the BARBIE mark nor likely to confuse consumers that Mattel was affiliated with the song. The decision was later affirmed at the appellate level.
More recently, Mattel filed a trademark lawsuit against Rap Snacks over the launch of Nicki Minaj-branded “Barbie-Que” potato chips. What prompted the suit was the June 2022 launch by Rap Snacks of its Minaj’s Barbie-Que Honey Truffle Potato Chips – a play on Minaj’s longtime “Barbie” nickname. Mattel’s lawsuit claimed that this name violated its trademark rights to the BARBIE brand. Subsequently, Mattel agreed to drop the lawsuit, but only after Rap Snacks agreed to change the name of the chips to Minaj “Bar-B-Quin”.
And just a little more than a month or two ago, Mattel filed an opposition at the U.S. Patent and Trademark Office to a trademark application filing by the luxury fashion house Burberry for the mark BRBY. Mattel argued that the terms BARBIE and BRBY are visually very similar and phonetically virtually identical. Mattel says that it has used and continues to use the BARBIE mark in connection with handbags, overnight bags, luggage, various types of clothing and apparel items, footwear and headwear – all of these goods are proposed to be offered by Burberry under the BRBY mark. No decision yet so we will have to wait and see where this dispute ends up.
Inventing the Atomic Bomb
- Robert Oppenheimer, the subject of the OPPENHEIMER movie, was as an American theoretical physicist and director of the Manhattan Project’s Los Alamos Laboratory during World War II. He is often called the “father of the atomic bomb”.
During the course of the Manhattan project, which operated from 1941 to 1945, scientists and engineers working on the Project filed numerous patent applications with the U.S. Patent Office, covering many aspects of the science and technology behind building an atomic weapon. Consistent with Patent Office practice for handling sensitive technology, these patent applications were directed in effect to a secret division of the Patent Office.
Under Patent Office procedures, the U.S. Patent Office conducts an initial review of a filed patent application in order to determine if it is subject to national security or secrecy requirements. If so, the patent application is treated very differently than most other patent filings and is prevented from being disclosed to the public (notwithstanding the purpose of the patent law to encourage public disclosure of inventions). That is precisely what happened with any U.S. patent filing which arguably had some relationship to the development of the atomic bomb. Indeed, hundreds of patent applications were filed in the mid-1940s by contractors working on the Manhattan Project.
Not surprisingly, many of the filed patent applications directed to developing the atomic bomb were allowed, but the patent grants were withheld from publication until the technology was no longer considered to be sensitive. Most of these patent applications, which were filed in the mid 1940s, were not published until the late 1950s and some remained secret even longer, only first issuing in the 1970s. (A list of US Patents related to the Manhattan Project was made available in response to a Freedom of Information Act request and can be seen here: https://sgp.fas.org/othergov/invention/manhattan.pdf )
When reviewing some of these patents, it is apparent that each just describes a very specific and discrete element of an incredibly highly complex technological system. Technically speaking, how to build an atomic bomb is now, at least in theory, part of the public domain. Practically speaking, however, by the time the patents were allowed to publish, the information in them was already known from other sources or was otherwise obsolete, making it very unlikely that someone could come anywhere close to building an atomic weapon simply by looking at old issued U.S. patents.
Barbie v. Oppenheimer. Patents v. Trademarks. Very different yet somehow related – at least to this intellectual property attorney.