"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 recent lawsuit will be, long time 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
often lose the case.
The United States Patent and Trademark Office (USPTO) and US Federal Courts
generally opins that personal names meant and used as the identification of an
individual does 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 a myriad of reasons but essentially that it is the name of a country and
thus too 'generic'.
However, the mixed 'word mark' of "China Barbie" would, likely, be a valid
registration - if it wasn't the current subject of objection. Many onlookers
could bet that Mattel's intellectual property attorneys are working over time
to register, "Barbie of China", "China Barbie", "Chinese Barbie", or similar
word marks to arm themselves in this campaign.
This still forgets 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. Domain Name System (DNS) 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 their millions long before China Barbie to
buy up any domains they felt might represent a threat to their 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 some
how infringe on the IP rights of Mattel they could contest it. However usually
the first step is making a complaint with Uniform Domain-Name
Dispute-Resolution Policy (UDRP) an arbitration board provided by Internet
Corporation for Assigned Names and Numbers (ICANN) before taking it to the US
Federal 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 hasn't got legs in this case. So why are they bothering
to spend hundreds of thousands of dollars to prosecute this case?
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 they are
being lambasted in the West for producing in a 'trade' pariah like 'China' a
'product' that might be dangerous because of 'lead' or 'paint', Mattel's PR
guru's can turn the attention on this "slut, porn star" who is misusing their
good, honorable name.
Often the methodology of larger businesses and corporations is to 'bleed' your
victim through litigation. Smaller organizations - like China Barbie - have no
where near the resources to successfully fight an attack from a company like
Mattel.
Mattel and their IP attorneys 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.
