“Ken dumps Barbie” read the ads, which feature a picture of a frowning Ken doll, male companion to Mattel’s Barbie. Ken apparently did this because Mattel, maker of Barbie dolls, contributes to global deforestation, and Greenpeace isn’t happy about that. Greenpeace tried to run this ad, but it was rejected by Facebook:
Greenpeace seems to have a point. There is a concept akin to copyright’s fair use doctrine that relates to trademark use, although as always with trademarks, if there is evidence of confusion among the public, things start to go off the rails fast. Here’s what Greenpeace had to say about the Facebook takedown:
According to our legal analysis prior to the campaign, this complaint to Facebook that Greenpeace violated trademark rights is a meritless attempt to stop us from conveying to the public the practices of Mattel that contribute to deforestation.
Greenpeace used Ken and Barbie in a satirical, noncommercial way, which falls outside of trademark protection.
This is an attempt to silence our right to free speech, the sharing of information on the internet and our work to make Mattel protect rainforests and the 400 remaining Sumatran tigers in the wild.
In looking closer at that ad, though, I can see where Facebook is coming from, and probably where Mattel is coming from as well. The biggest thing that I see is that the ad says nothing about Greenpeace’s goal, the point of its satirical use: to draw public attention to deforestation. Maybe “Ken dumps Barbie for wearing Sumatran tiger skin” would have been a little more appropriate? Most online providers that I’m familiar with have trademark use policies that forbid actual use of a trademark term in the copy or headline of a sponsored ad, though you usually are allowed to purchase the trademark terms as keyword triggers, the thought being that’s not a visible “use in commerce.” There’s been some discussion about whether that argument is correct or not. In any case, Mattel’s Barbie (and Ken?) trademarks do appear directly within the copy of the ad here, which generally violates the company policies that I’ve seen for sponsored ads. So maybe my idea still wouldn’t be acceptable.
However, if Greenpeace had, for example, put the words Mattel in a smoke cloud above a burning rainforest with dead tigers in it, would that have been okay? With ad copy that ran something like “Mattel encourages Indonesian deforestation, hates tigers” … to me, that would probably have been more in line with a fair use, because there could be no good faith argument that somebody reading that could ever be confused. Looking at the ad Greenpeace ran, it’s entirely plausible that someone could believe it was a Mattel sponsored ad — even though the linked video was probably produced by Greenpeace (I haven’t looked for it to see what it was like). To the extent that the linked video eliminates any confusion, Greenpeace probably has an argument against Mattel that its use is fair, but Facebook’s policy has to be enforced on some sort of uniform basis, and I doubt that they are doing much investigation of where the ads actually go, absent complaints by users of scams and the like.
And Facebook certainly isn’t going to open itself up to liability from the Mattel side in reliance solely on Greenpeace’s assertions about trademark law, correct or not.
My personal opinion is that Greenpeace is trying to be too cute with this sort of ad. Stick to the message, don’t try to dress it up.