Mattel, which makes Barbie dolls, was forced this month to recall millions of toys that were made in China because of lead paint and loose magnets. So what’s Mattel’s next step in recovering from possible lost revenues? To attack porn star “China Barbie” of ChinaBarbie.com, of course.
Rather than focusing on its own legal problems, the major US corporation has decided to take aim at suing US porn queen China Barbie for her comparatively nominal monetary assets.
“The site’s been up for like five years, so it’s like, why are they coming after me right now?” she wondered recently of the trademark-infringement lawsuit leveled at her website ChinaBarbie.com by the California-based toymaker.
“It’s because they’re in trouble right now with the lead-poisoning thing, and everyone’s been Googling it and that’s how they found out about the site,” she told Hasani Gittens of the New York Post in a recent interview.
“I’m not marketing myself to children, in any way shape or form,” said China Barbie, whose real name is Terri Gibson.
Regardless of what the outcome of this lawsuit will be, longtime fans of China Barbie are rallying around, many through her website and her Adult Yahoo Group.
The tactic being undertaken by Mattel is especially questionable in this case. Often intellectual-property owners who file lawsuits in similar circumstances lose the case.
The US Patent and Trademark Office and US federal courts generally opine that personal names meant and used as the identification of an individual do not give rise to infringement or damages unless the individual is seeking to identify with and purposefully using intellectual property of the complainant – which China Barbie is not.
“Barbie” is a common name but is also a trademark owned by Mattel for certain purposes, and has certain limitations. “China”, of course, cannot be trademarked for myriad reasons but basically because it is the name of a country and thus too “generic”.
The mixed “word mark” of “China Barbie” would likely be a valid registration – if it weren’t the current subject of objection. One can bet that Mattel’s intellectual-property lawyers are working overtime to register “Barbie of China”, “China Barbie”, “Chinese Barbie”, or similar word marks to arm themselves in this campaign.
But this still overlooks the fact that Miss Barbie is using the name as a personal moniker without seeking to use or infringe on Mattel’s intellectual property. Any long-term court battle would likely end up ruling against Mattel, in Barbie’s favor.
Even the domain name that Mattel is fussing over – which is part of the lawsuit – does not enhance the claim. The Domain Name System registrar that allowed China Barbie to register and use ChinaBarbie.com stands strongly on a first come, first served basis.
Mattel had the opportunity to spend its millions long before China Barbie to buy up any domains it felt might represent a threat to its intellectual-property (IP) rights. That might sound ominous for owners of intellectual property, but it is not; if Miss Barbie had used the domain in question to infringe somehow on the IP rights of Mattel, the company could contest it. However, usually the first step is to make a complaint to the Uniform Domain Name Dispute Resolution Policy board, an arbitration panel provided by the Internet Corp for Assigned Names and Numbers, before taking it to the courts.
In either case – for successful prosecution by the plaintiff – she would have had to use Mattel images, products or advertising to promote her site, which she hasn’t.
Unlike Barbie, Mattel doesn’t have legs in this case. So why is it bothering to spend hundreds of thousands of dollars to prosecute it?
It could be summarized by keywords: “China, Barbie, production, lead, trade, labor, paint, magnets, Mattel” versus what you might find by just searching on “China Barbie”. For Mattel it is a public relations action – while the firm is being lambasted in the West for making in a “trade” pariah such as “China” a “product” that might be dangerous because of “lead” “paint”, Mattel’s PR gurus can divert the attention to this “slut porn star” who is misusing the firm’s good, honorable name.
Often the methodology of larger businesses and corporations is to bleed their victims through litigation. Smaller organizations – like China Barbie – have nowhere near the resources to fight successfully an attack from a company like Mattel.
Mattel and its IP lawyers might realize that they have no valid litigation against China Barbie that would recover damages, but the job is not to recover assets. The job is public relations, disinformation and redirection.
Source: Copyright 2007 – Asian Sex Gazette, reprinted with permission – By William Sparrow – August 31st, 2007
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