Barbie Gets Her Day In Court (And Loses) (Kozinski)

barbie lawsuit

Barbie, looking effervescent despite lawsuit loss.

In 1997, the Danish band “Aqua” released a parody of America’s favorite thin plastic girl, Mattel’s Barbie®, called “Barbie Girl.” Mattel sued for trademark infringement and dilution. The federal district court in California granted summary judgment against the plaintiff, ruling the song was protected parody.

The U.S. Court of Appeals for the Ninth Circuit affirmed in an opinion by Judge Alex Kozinski. Judge K opened by posing the case as an epic battle between free speech and intellectual property rights. In his words, “[i]f this were a sci-fi melodrama, it might be called Speech-Zilla meets Trademark Kong.”

In ruling against Mattel, Kozinski opined that Barbie is much more than a mere product in the American conscious. She also had a more colorful past than you might realize:

Barbie was born in Germany in the 1950s as an adult collector’s item. Over the years, Mattel transformed her from a doll that resembled a “German street walker,” as she originally appeared, into a glamorous, long-legged blonde. Barbie has been labeled both the ideal American woman and a bimbo. She has survived attacks both psychic (from feminists critical of her fictitious figure) and physical (more than 500 professional makeovers). She remains a symbol of American girlhood, a public figure who graces the aisles of toy stores throughout the country and beyond. With Barbie, Mattel created not just a toy but a cultural icon.

It’s true. Barbie is a myth, a legend, and, for better or worse, represents the dreams of little girls everywhere. My daughter used to own probably a dozen Barbies. At what point, if any, can a product image become part of the public domain because it has become woven into the fabric of culture itself?

As Kozinski said in discussing Mattel’s trademark-infringement claim:

The problem arises when trademarks transcend their identifying purpose. Some trademarks enter our public discourse and become an integral part of our vocabulary. How else do you say that something’s “the Rolls Royce of its class”? What else is a quick fix, but a Band–Aid? Does the average consumer know to ask for aspirin as “acetyl salicylic acid”? Trademarks often fill in gaps in our vocabulary and add a contemporary flavor to our expressions. Once imbued with such expressive value, the trademark becomes a word in our language and assumes a role outside the bounds of trademark law.

Don’t remember Aqua’s one-hit wonder novelty song? No worries. The court attached the lyrics as an appendix. Here’s the chorus to refresh your memory:

I’m a Barbie girl, in my Barbie world

Life in plastic, it’s fantastic

You can brush my hair, undress me everywhere

Imagination, life is your creation

Come on Barbie, let’s go party!

Here’s the Official YouTube video.

Mattel, this is more humor. Don’t sue.

Mattel, Inc. v. MCA Records, Inc., 296 F.3d 894, 898, 909 (9th Cir. 2002).

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Andrew Jay McClurg is a law professor whose teaching and research interests include tort law, products liability, legal education, privacy law and firearms policy. He holds the Herbert Herff Chair of Excellence in Law at the University of Memphis Cecil C. Humphreys School of Law.
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