Court turns down date with Barbie

By MICHAEL KIRKLAND, UPI Legal Affairs Correspondent   |   Jan. 27, 2003 at 12:15 PM   |   0 comments

WASHINGTON, Jan. 27 (UPI) -- The Supreme Court Monday let stand a lower-court ruling in favor of a Danish group with a song that Mattel Inc. claims rips off the image of its most popular doll.

The giant toymaker said the song "Barbie Girl" by group "Aqua" is a trademark infringement of its Barbie brand.

The song features the relationship between "a Barbie girl, in my Barbie world" with another character she calls "Ken."

"Life in plastic, it's fantastic," part of the lyrics say. "You can brush my hair, undress me everywhere ... Come on Barbie, let's go party."

In a petition to the high court, Mattel said it spends more than $100 million each year to market and promote Barbie in the United States alone, with a primary target of girls aged 3 to 11.

In 1997, MCA Records began promoting "Barbie Girl."

Mattel complained that on many CDs and CD-ROMs featuring the "Barbie Girl" song, MCA listed the title in bright pink letters, similar to an earlier promotion for the Mattel doll.

A promotional video for the song also used the same color for its title, props and scenery.

The "Barbie Girl" promotion also consisted of news releases that referred to Mattel's Barbie Dream House, the toymaker said.

Finally, MCA targeted the song to girls aged 9 to 14 and promoted in on television on Saturday morning and after-school hours.

The recording sold 1.4 million copies in the United States.

"That same marketing, however, also caused considerable confusion as to whether Mattel had released the 'Barbie Girl' recording as a Barbie brand product," Mattel said. "Mattel received e-mails from young girls who believed that 'Barbie' had written or performed the song, and asked for copies of it."

Mattel filed suit for trademark infringement in federal court in Los Angeles. However, a federal judge refused to issue a preliminary injunction against the recording, and said that as a parody the recording did not dilute the trademark.

A federal appeals court panel was more caustic.

"Barbie was born in Germany in the 1950s as a adult collector's item," U.S. Circuit Judge Alex Kozinski wrote in the opinion. "Over the years, Mattel transformed her from a doll that resembled a 'German streetwalker,' as she originally appeared, into a glamorous, long-legged blonde. Barbie has been labeled both the ideal American woman and a bimbo."

The judge conceded that with Barbie, "Mattel created not judge a toy but a cultural icon."

However, "with fame often comes unwanted attention," Kozinski wrote. " ... There is no doubt that MCA uses Mattel's mark: Barbie is one half of Barbie Girl. But Barbie Girl is the title of a song about Barbie and Ken, a reference that ... can only be to Mattel's famous couple."

The opinion upholds the judge, both for refusing to curb promotion of the song and for refusing to take seriously MCA's charges that it was defamed by Mattel.

"The parties are advised to chill," Kozinski said.

Mattel then asked the Supreme Court for review, which was denied without comment Monday.

--

(No. 02-633, Mattel vs. MCA et al.)

© 2003 United Press International, Inc. All Rights Reserved. Any reproduction, republication, redistribution and/or modification of any UPI content is expressly prohibited without UPI's prior written consent.
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