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.
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"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.
