1961: Barbie, we’re just getting started
In 1961, Mattel Inc, the owner of Barbie dolls, was sued by a German toy company, Greiner & Hausser (G&H), who claimed Mattel had infringed their U.S patent by copying their ‘Bild-Lilli’ doll. G&H had been granted a patent in 1960 for the “doll hip joint” and exclusively licensed its rights to Louis Marx, a toy manufacturer based in New York. Mattel asserted the patent was invalid or, if it was valid, then it was not infringed.
Eventually in 1963 the claims and counterclaims were dismissed and in 1964 Mattel purchased G&H’s copyright and patents . Barbie went on to become Mattel’s best-selling toy in history, and in 2022 the Barbie brand generated gross sales of $1.49 billion U.S. dollars.
2002: Let’s go parody
When most people think of Barbie, it’s highly likely the song "Barbie Girl" by Danish band Aqua will come to mind. It was released in 1997 by the record label MCA Records Inc, and by 2002 they were sat in the United States Court of Appeals after being sued by Mattel on eleven counts of copyright and trade mark infringement.
The Court of Appeals likened the proceedings to “Speech-Zilla meets Trademark Kong”, viewing the song as a parody of Barbie and eventually protecting MCA Record’s freedom of speech through the First Amendment stating “where an artistic work targets the original and does not merely borrow another’s property to get attention, First Amendment interests weigh more heavily in the balance” (read the full judgment).
Mattel had argued that the “song dilutes the Barbie mark in two ways: it diminishes the mark’s capacity to identify and distinguish Mattel products, and tarnishes the mark because the song is inappropriate for young girls”. These proceedings tested the balance between the freedom of brands to legitimately parody and the brand owner’s rights to prevent damage to their mark. In this case, artistic freedom came out on top: Mattel’s claim was unsuccessful with the court ruling it was clear that ‘Barbie Girl’ was not by Mattel and, therefore, “MCA’s use of Barbie is not an infringement of Mattel’s trademark”.
Parody is available in English law as a defence to copyright infringement under the Copyright Designs and Patents Act 1988 (CPDA) but is not a defence to trade mark infringement. Provided that the mark is not used for goods or services identical or similar to those for which the brand is registered as a trade mark, defendants would instead have to show either that the brand does not have a reputation in the UK (which “Barbie” clearly does) or that the use of the mark does not take unfair advantage of, or cause any damage to, the brand’s distinctive character.
The legal implications of parody are by no means clear cut, and as the internet becomes increasingly saturated with parodies, whether that be in the form of memes, tiktoks or gifs, it can understandably be difficult for brands to enforce their intellectual property rights. There does, however, seem to be a clear distinction between parody for commercial use versus just poking fun. Just as weight was put on the purpose of the "Barbie" mark in "Barbie Girl", the same issue was prevalent in the recent Jack Daniels Properties v VIP Products LLC, where a spoof whiskey bottle dog toy labelled ‘Bad Spaniels’ was deemed by the Supreme Court of the United States to be an infringement on Jack Daniels’ IP rights. It was decided that the Jack Daniels mark was being used “as a designation of source for [its] own good”; clearly contrasted in the judgment to MCA’s use of Barbie to mock the "life in plastic".
Throughout singer Nicki Minaj’s career she has established a relationship to Barbie. Her fanbase are known as "Barbz" (for short), and she has multiple songs that have been in the Hot 100 with “Barbie” in the title. In 2011 Minaj even collaborated with Mattel to release her very own "Minajesty" doll.
However, in June 2022 when the snack brand Rap Snacks launched Minaj branded crisps called “Barbie-Que”, Mattel sued Rap Snacks for trade mark infringement stating that they never gave the brand permission to use their mark. Mattel dropped the lawsuit just over a month after filing the complaint and the terms of settlement were not disclosed.
2023: Imagination, your brand is your creation
Now, over twenty years after Mattel sued MCA Records, and only one year after suing Rap Snacks for their collaboration with Minaj, the soundtrack to the Mattel-approved film Barbie features the ultimate collaboration of Mattel’s previous defendants: "Barbie World (with Aqua)" by Nicki Minaj, Aqua and Ice Spice. Featuring typical Minaj-esque lyrics, the song features far more “inappropriate” references than Aqua’s “hanky panky”. Mattel have no doubt reflected on the merchandising benefits of parody in the right circumstances, and recognised value in Gerwig’s interpretation of Barbie that appeals to a PG-13 crowd; targeting a demographic that once loved, but have most likely outgrown, their product.
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