[Guest post] The ‘brat’ phenomenon: Exploring cultural influence and IP dynamics

Summer 2024 has officially been proclaimed as ‘brat summer’.

While Charli xcx does not, so far, enjoy the commercial recognition of mainstream pop artists within the music industry, her influence appears to be vast, as her newest album release has sparked a cultural phenomenon. It has been noted that albeit the audience her music is addressed at is not the largest, it is the one that sets the trends – dictating what everyone else on the internet will be listening to and wearing in the foreseeable future. With the shift of the mainstream towards the niche (or the ‘niche-ification’ of the mainstream), she has managed -among other things – to establish slime green, as the it colour of the season – the alleged successor of last summer’s Barbie pink, creating a somewhat nuanced IP scenery around it as well.

Charli’s 6th studio album ‘Brat’, released on June 7th 2024, was promoted following a simple – yet, apparently, effective – approach: heavy use of a ‘radioactive’ shade of green, f.k.a. slime green (now ‘brat green’) in various means of advertising throughout the promotional campaign.

The colour was also used in the official album cover, creating a clear connection with the artist’s advertised work and the inauguration of the era it signalled.

The ‘brat wall’ and the ‘bratmobile’

Notable parts of the campaign were the use of brat green on the internet sensation ‘brat wall’, a wall in Brooklyn, NY, where all the album-related announcements and updates were painted on, in the form of minimalistic (almost cryptic) messages, a process which was live streamed on TikTok, as well as the ‘bratmobile’, the brat green Tesla used for the artist’s transportation to promotional activities (such as album signings, club appearances etc.).

As social media users quickly caught up with the association of the brat green colour with less conventional means of advertising, or items in general, suddenly everything even remotely similar to this slime green shade was denounced as ‘brat’ – from lime scooters to pharmacy cross signs.

This state of pandemonium across social media platforms swiftly led fashion brands and luxury retailers to capitalize on this frenzy by re-branding their green products as ‘brat’. Just to mention a few, UK luxury retailer Flannels distributed a brat green edit to buyers and the press, featuring items in the shade, from brands such as Coperni and Balenciaga. Meanwhile, New York brand Kate Spade posted a brat green starter pack on TikTok, promoting its own products in this colour, whereas beauty retailer Beauty Bay and beauty brand ColourPop seized the opportunity to advertise their green coloured products as ‘brat’ on their social media accounts.

The brat green craze was, nevertheless, not restricted within the sphere of fashion and beauty. Leading up to the UK’s general election on July 4, the Green Party designed a brat green graphic mimicking the album cover, replacing the word ‘Brat’ with the message ‘Vote Green’.

As Vogue Business reports, since the album’s release in June, Brat has produced $22.5 million in media impact value (MIV), according to Launchmetrics, which assesses the value of brand or individual posts, article mentions, and social media interactions. Over the past fortnight, searches for items in the brat-style ‘slime green’ have increased by 17%, according to global shopping platform Lyst.

According to Vogue,

The IPKat, brat-style (created with the brat generator)

As digital fashion writer Daniel Rodgers predicts, this shade of green will feature heavily on the catwalks this September – similar to how Barbie pink reigned over the fashion scene last year. If that is the case, the life circle of brat green, birthed in the streets of New York and rapidly morphed into a viral aesthetic across the internet, will continue on the catwalks during September’s fashion week, only to return to the streets (or red carpets) in the form of couture.

It is argued that ‘brat is more of an attitude rather than an aesthetic’. Exploring the latter case, nonetheless, might be more practical and could present several complexities from an IP perspective.

First of all, one would need to differentiate between the potential for IP protection of the entire brat aesthetic as a style, which could arguably not be protected by copyright (something contradictory to the fact that there is an explicit exception for that – i.e. the provision regarding pastiche in Art. 5(3)(k) of the InfoSoc Directive 2001/29) from the possibility to register ‘brat green’ as a colour mark.

From a trade mark perspective, managing to register a single colour per se, is a daunting yet not impossible task (see the Libertel case, as well as the relevant discussion on the protectability of signature colours as trade marks on The IPKat here). Nonetheless, providing evidence of acquired distinctiveness in order to fulfil Art. 7(3) of the Trade Mark Regulation (2017/1001) is an endeavour several major brands have failed in (a notable example being Louis Vuitton – ‘Damier Azur’, T-275/21, concerning a pattern rather than a colour; see the case commentary on The IPKat here). Obviously, applying for the registration of the colour in conjunction with the graphic representation of the album title would increase the chances of the application succeeding – while simultaneously significantly decreasing the trade mark’s scope of protection.

On-trend brat attire

Anyhow, the marketing around ‘brat’ and its signature colour appears to be counterintuitive to the IP strategies usually employed to establish colours as trade marks; Charli seems to encourage several behaviours on the part of brands using brat green, that most would avoid in fear of rendering their aspiring trade mark colour ‘generic’. The rationale behind this appears to be quite simple: Charli xcx clearly does not seek a monopoly over the brat aesthetic; she wants it to be as widely used as possible. A testimony to this is her ‘brat generator’, an online tool allowing users to create custom images resembling the album cover of ‘brat’.

All the above said, it is understandable that the ‘brat’ era’s subject matter from an IP perspective cannot be confined to the music, the cover’s colour, or its intentionally lo-res Arial Narrow font; it is a mixture of all these elements that are inextricably linked. Focusing on brat green from a trade mark perspective, however, provides an opportunity to assess a case where the ‘proprietor’ of a signature colour seeks its widespread adoption rather than its monopolisation, in order to allow the trend they sparked to explode into a cultural phenomenon. Embracing this ‘open use’ of the colour both by brands and retailers attempting to re-brand and promote their products as ‘brat-coded’ enhances community engagement as well as fan loyalty, due to the sense of ownership and participation in the cultural movement associated with the colour and the overall aesthetic created among the audience.

This perfectly explains why Charli xcx has thus far endorsed extensive use of both brat green and the word ‘brat’ even in commercial contexts – a strategy which has proven highly successful in terms of cultivating hype around the ‘brat-verse’, elevating it to stratospheric levels. Should she decide to change her approach and seek trade mark registration (or enforcement), though, she may have to tackle genericide claims, due to its extensive use fostered by her current marketing strategy. In any case, her strategic embrace of widespread adoption over exclusivity, has propelled ‘Brat’ into a cultural touchstone, highlighting a novel approach to IP in the digital age – a bold move setting a precedent for how colour branding can transcend traditional boundaries.