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Barbie Demands A Domain
localman writes: "In an ongoing legacy of tormenting Web site owners, Mattel Inc. is threatening legal action against my wife and I for planning to make a non-business all-girl
video game
clan site entitled
thebarbies.com.
Apparently they have
a long history of censoring people.
I've put up a page about the dispute, but what else can an individual do against a corporation?"
Write a
story?
Seriously -- this is a standard trademark domain dispute, it's happened many times and will continue to happen -- maybe someone should write an FAQ for legitimate domain holders who get The Letter.
as Andover.net's failed attempt to take over slashdot.net.
Oh wait, you never saw that on the front page, did you?
Pathetic attempt at a rhyme aside, I'd like to point out two things - first, different registar's have different policies. The .god domain, for example, says "first come, first serve".. and that is the registration policy. The second point is that "Barbie" and "The Barbies" are two distinct and seperate trademarks under US trademark law. This is why there can be "Engree Systems" and "Engreen Systems" and they can't sue each other. If you want to make maximum brownie points with the judge.. classify your trademark under another category that doesn't conflict with the existing Barbie trademark. I can register "Barbie Electronics" and they can't do a damn thing because it is a seperate category. Just my $0.02.
You know, if they DON'T sue, they will lose their ability to enforce the "Barbie" trademark. Result: millions of inferior Mexican dolls will flood the market, causing untold harm to consumers.
They have to sue. Get over it. It's for the good of us all.
However, nowadays, with trademarks entering the domain frey, a bit of research should have been done to find out what problems might have come from using that domain name. Your research would probably have pointed to the various mattle legal battles that you spotted already, and you may have wanted to change the name or done something different.
Secondly, and more of my nit, why are you polluting the TLD .com with a non-commerical entity? An .org name would be better here, and would probably have taken mattle's site off from you.
While I'm not sure that your joke content caused teh problem, you should also have a bit more on your page as it stands now as to avoid issues with cybersquatting. Explain that this will be a clan page for "Tribes", and also state that in no way the page is connected with the Barbie trademark or MAttle. That might have also calmed the lawyers and made your case stronger when ICANN reviews it.
"Pinky, you've left the lens cap of your mind on again." - P&TB
"I can see my house from here!" - ST:
The way I understand it is the law protects the right to parody, but in this case a picture of an actual (although modified) Barbie doll. In addition the trademarked Barbie name is used. However, let us suppose someone took a picture of their child playing with a Barbie doll, posted the picture online with a comment stating what the image showed. Once again we have an actual picture online with use of the trademarked name in a situation where no one would consider the law to be broken. What we have here is a question of fair use, the Barbie I presume was properly paid for. I personally feel you are safe, but my opinion doesn't truly matter here. The real question is do you have both the means and the will to fight this. The nasty truth behind this and many other court cases that have received slashdot discussion in recent months is that a large corporation like Mattel can push and bully with little resistance from the man on the street. If (as seems the case) your wpp is prepared to fold under a little pressure their may be very little you can do about it apart from find a new hosting company. That said I was quite impressed that they wrote to you and asked instead of just taking the site down (which many seem to do these days).
Okay, Slashdot has found a way to piss me off. The following domain name disputes have been covered on Slashdot (big idjut corporation vs. little community based site):
eToys vs. eToys
Digital Diva vs. Digital Divas
Mattel vs. The Barbies
However, the following domain dispute wasn't (even though to my knowledge, it was submitted many times to the Slashdot submission queue):
Chunky Monkey vs. ChunkyMunky
ChunkyMunky gave up because a legal defense would have been way too expensive. But I have to wonder if a Slashdot editor had taken the 10 minutes it takes to post that story, the outcome might have been different.
You should never take life too seriously - You'll never get out of it alive.
The original /. story is here. The story generated over 1,300 letters to Archie Comics, causing them to back down. It'll take more than that to take Mattel on, I'm sure.
Strangly enough, www.veronica.org doesn't seem to be up anymore. Hmmm...black helicopters...
It's pretty obvious that the maker of "The Barbie's" is just trying to get some attention for his stupid little game by picking a fight with a large corporation. I mean, why the hell would anyone want to choose a name so close a trademark like that? What a loser.
Well, click on the link provided in this story and you'll see a link to "Aqua Triumphant in "Barbie Girl" Lawsuit"
Looks like you have a couple different options, like you can give up or you can fight it. Since you haven't given up yet, you should go ahead and do some other things.
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1) Send emails to Wired.Com, NY Times, Rolling Stone, Washington Post, and a bunch of other news agencies. Tell them what's going on, try not to use too many cuss words.
2) Contact non-profits that protect personal freedom issues. See if they'd be willing to help yet with advice if nothing else.
3) If it does turn into a trademark issue, there's some laws concerning fair use . Basically if you're using copyrighted materials in criticism, review, or parody, it's legal. So, start criticising. Although, you probably qualify as parady.
- Good luck.
I provide a link to the page from my homepage named "words I live by".
-- Could you use my software consulting serv
From http://tribesarena.com/thebarbies/:
:) I they did not just make it a 'valuable' name now that it's on /.
To give you an idea of how ridiculous their claim of "trademark dilusion" is, I have included our entire access log from April 16 2000 to May 31 2000. That's right, 4 unique visitors in 46 days, and that includes friends, family, and lawyers. Even if Mattel "wins", they will be getting a truly useless domain for which I can only imagine they are paying thousands of dollars in lawyer fees.
I wonder what the logs are like now
Ummm... you referenced a BBQ site in your correspondance with Mattel. Not that I'm a lawyer, but by placing a picture of a bunch of girls around a barbie (Austrialian for Barbeque grill, afaik), I imagine it would make your position appear much stronger.
It would also fit in with the "Party Tribe for Girls" theme.
And people, remember... there are some corporations that recognize that fan sites and parody sites keep your fan base alive *way* past when you'd expect them to die. Not all corporations are evil.
--
Evan
"$30 for the One True Ring. $10 each additional ring!" -- JRR "Bob" Tolkien
Isn't the only reason the word Barbie is such a strong reference for women because of the poplularity of that stupid toy? Or maybe you're using the word Barbie as in the famous Nazi butcher? What are you planning on doing for HTML just lift it from the mattel site?
Its one thing to have a legitimate trademark issue, its another to demand that so-and-so evil corporation is taking your rights, especially in a country where the trademark holder is obligated to defend every violation thats brought to its attention.
Considering these facts, the best thing you could do is use a new non-sense word or simply words that aren't used by a big company who has had a history of defending their trademark.
You're only setting yourself up for a fall and even if mattel didn't care, once its brought to their attention they have to do something about it. Blaming Mattel for the law isn't going to get you anywhere, well except slashdot.
second point is that "Barbie" and "The Barbies" are two distinct and seperate trademarks under US trademark law.
Sig11, you ever wonder why you bug people so much? It's when you make statement like this that is so ignorant and stupid. Let me sum it up for you: YOU ARE NOT A LAWYER. YOU DON'T KNOW WHAT YOU'RE TALKING ABOUT. But you state this as if it's a fact and it's complete bullshit. If you stated things in a little less overly positive manner, you would probably not get flamed as much.
But on to your point: it's crap. I guarantee you that if I launched a company called "The International Business Machines", IBM would sue my ass and win before I knew what hit me.
The key concept here is "marketplace confusion". If there is confusion created (as my l33t company name would obviously create), then there is a case.
I'm allowed writing anything I like about Ford without stepping on theit trademark rights. But if I start painting Ford logos on Ladas and reselling them, I might get in trouble! This is a similar situation -- Mattel is just protecting Barbie's good name.
So who thinks that this site just might end up on the "Adult" list in Mattel's censorware product?
Get a life, not a lifestyle. - Hikem Bey
-------
CAIMLAS
~/ssh slashdot.org ssh: connect to host slashdot.org port 22: too many beers
Localman, This is too incredibly ironic - I had considered, as a spoof, creating a Half-Life CounterStrike team using the name "Barbie" about a month ago. A group of net-based friends and I have had a Quake "clan" for over 4 1/2 years (The Seven) and decided to experiment with CounterStrike, while goofing a bit at the same time. Being a net consultant though, I knew the possibility for legal entanglement might arise. I visited Mattel's home page, and _carefully_ read their legal section. Needless to say, their policies on the usage of the "Barbie" name is Draconian, to say the least. As one of buddies owns the ISP we use to host our team website(s), I didn't wish to get him in hot water, so we simply created another "goof" team name. ( www.battleground.net/cuddly ) I suppose on one hand, you must understand why Mattel wishes to protect their cash co..er, doll - Yet on the other, they are using their corporate largesse to frighten off the little guys. Saturday Night Live, Jay Leno, and Conan O'Brien can make parodies using such themes as "Streetwalker Barbie" while comfortably shielded by NBC's billions & legal department, yet a fan page, or a site such as yours, which obviously contains no effort to degrade the Barbie 'image' or sell a copycat product is ruthlessly crushed by Mattel's jack-booted legal department. Perhaps the S.W.A.T. Barbie with HK-MP5 tactical submachine gun, night vision goggles and rapid-deployment legal team doll is already in production. And all this, so little girls can spend a lifetime feeling insecure about their weight. scot@iot.net =o)
The name Barbie has been around longer than the doll. The doll was named after a girl.
Mattel is know for bring abusive lawsuits.
Fight Spammers!
Ever hear of principals?
You lose rights inches at a time. If you don't fight for your rights you lose them?
In my case when a judge asked Mattel what was libelous, Mattel asked to dismiss their countersuit.
Fight Spammers!
Watch out, if you say anything negative about Mattel, they may sue you too.
Fight Spammers!
Let's see if I've got the SlashDot view on trademark correct.
.com site, nobody here seriously thinks the name was just accidental, do they?
The DigitalDivas should be able to stop Microsoft from using the term Digital Diva, even though their usage is very different, it's a fairly generic term, and virtually nobody thought that 'Digital Diva' was a reference to the prior group.
But Mattel is evil for objecting to the use of "TheBarbies" to refer to an online group for young girls, even though the reference to the doll is obvious to everybody.
C'mon, get real. It's simple theft of trademark. This guy's using the popularity of the Barbie doll to push his own
Had TheBarbies.com been a site about barbecuing, then he'd have a point, but this is simple trademark theft. The nature of the original trademark has a direct connection to the new business.
If I bought www.quake.com to create a site about earthquakes, that's my right. But if I put up a gaming site, id software has every right to object to the theft of their trademarked name. And that's the way it should be.
Why don't you and all the others reading this article who disagree with this (bullsh*t) lawsuit do what I intend to do? Write to the powers that be at Mattel.
Robert Eckart
Matthew Bousquette
Pleasant T. Rowland
Kevin Farr
Neil Friedman
Mattel Inc.
333 Continental Blvd.
El Segundo CA
90245
Ceci n'est pas une sig.
The ChunkyMunky boyz are a bunch of jerks, looks like to me. It says the woman who owns the "Chunky Monkey" trademark agreed to not stand in their way! She had no objection to them using their domain for non-profit purposes along the lines of what they were currently doing. But they refused to go along with it and posted their bitter bile instead. I don't get it.
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It actually legal for you to start a company whose name included the word "barbie" as long as:
- the goods and services involved are not similar
- there is no evidence of actual confusion by consumers
- the intent in adopting its mark is not detrimental to the company
There are other issues too, but those three are enough to make it clear that Mattel owning a trademark does _NOT_ remove a pre-existing word from the language.Furthermore, in this case: dilution does not apply to non-commercial use. The law seems to support that you have the right to use the word "barbie" (or other trademarked words) for your own non-commercial reasons.
Hopefully this goes before a court of law - instead of the corporation getting what they want because most people won't or can't make it there.
...maybe someone should write an FAQ...
Dunno about a FAQ, but there's a mailing list/lobbying group at Ajax.org. Good luck.
Ever heard of McLibel? McDonald's tried to silence several protestors using British libel law, which as many of you know is weighted almost entirely in the plaintiff's favor. Most of them knuckled under, but two of them went to court. The case took years, but McDonald's eventually won a judgment.
But, many of the points that the protestors had been making -- in pamphlets seen by a few hundred people -- had now been proven in a court case watched by millions. McDonald's lost big in the court of public opinion -- so big that, when the defendants refused to pay the judgment, McDonald's did not pursue the matter.
Corporations don't threaten or sue because they have a solid case -- they do it because they know most people will be scared off without a fight. They've read their Sun Tzu -- Supreme excellence consists in breaking the enemy's resistance without fighting.
First, I just want to observe that people on both sides are -way- oversimplifying the case. On the one hand, it is a simple variant of a toy trademark on a site that is going to be about a game. On the other hand, Barbie -is- (or was, upon a time) a nickname for Barbara and saying you can't name any character 'Barbie' anymore is a little extreme - -and- it is a non-profit site. So. Whatever. Both sides have points, and this is nowhere near as obvious a case as etoy/eToys. As a non-lawyer I won't even speculate who has the better chance (though I'm inclined to side with the 'thebarbies' guy.)
Beyond my idle observations, my actual constructive suggestion is that a general appeal to slashdotters that a faq would be nice is all very well, but creating some sort of advice center on this topic seems extremely well suited to the recently formed OpenLAW group, if they can spare time away from the DVD issue (or if those not interested in the DVD issue wanted to work in parallel on a different subject... volunteerism is about interest not allocating 'workers' as we are reminded in every 'is this the best use of programmers?' thread on the various open-source-software topics).
Of course, it would be foolish to ignore the already existing efforts at ajax.org, and then there's my favorite organization, the EFF; but all in all, I think OpenLAW (maybe working with ajax.org's domanin name advocacy group) is the way to go on this particular issue, if anyone with OpenLAW is motivated by this case or ones like it.
--Parity
--Parity
'Card carrying' member of the EFF.
You do have to show a "use in commmerce", but the requirements for that are fairly minimal. Read the Nolo Press book on trademarks for the rules. A banner ad or an affiliate link to something probably qualifies, as long as there's potential income.
Even if your trademark application is rejected for the "principal register", which means you can keep others from using it, you can usually then file to put it on the "secondary register", which means nobody can keep you from using it. You still get to use "tm", and it's a trademark for ICANN domain dispute purposes.
On a positive note, you may recall the bitter and expensive lawsuit over Aqua's c. 1997 pop song "Barbie Girl" Mattel actually wanted the song removed from the album Aquarium. I don't know the details, but in that case Aqua and the record label won. (But I am pretty sure at one point during the case CD single copies of the song were withdrawn pending further progress of the case.) Of course, you probably don't have the perhaps millions of dollars the huge record company may have spent to win that one! Too bad Klaus Barbi died before Mattel could sue him! :) TWR
Am I the only one a wee bit suspicious about this? Sounds to me like he thought he could get them to rollover for a big wad and is now trying to re-direct the damage. If you're going to take a name which includes a name that's heavily trademarked and protected you're asking for it. Even if this is all true where do you think his wife got the idea for "Mondo Barbie"? From Barbie her hairdresser or Barbie the dolls they all played with when they were kids?
Maybe I'm just too cynical.... nah.
The revolution will NOT be televised.
If you look at my site, you'll see that Chunkey Monkey licenses the name of their company/character to Ben and Jerry's to use as their ice-cream flavor.
:(
So, no dice there
You should never take life too seriously - You'll never get out of it alive.
1 "an initial confusion on the part of web browsers using the [incorrect] domain name ... is not cognizable under the trademark laws" ... is not use of the name as a source identifier" and therefore not considered as trademark use by the PTO.
2 "unlike a patent or copyright, a trademark does not confer on its owner any rights in gross or at large"
3 "The use of an Internet domain name as a mere directional reference, similar to use of a telephone number or business address
quoted from Timemag
This case is another example of Mattel's abuse. Once Mattel stops acting like this, then I don't need to fight! But until then, I will keep fighting and try to get everyone together to coordinate the fight.
Fight Spammers!
Or something like that. If we ceased to exist, so would Slashdot. (Andover even? Who knows.) My point was, anyway, that the /. community could possibly do something about it.
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CAIMLAS
~/ssh slashdot.org ssh: connect to host slashdot.org port 22: too many beers
Tell me this isn't crazy.
Probelm is, these large corporations have colonized and are now in the process of domesticating the Internet. It's a huge digital shopping mall they want, and it is a huge digital shopping mall they will get - be it by hook, crook, or legal team.
If my name is Jim McDonalds and I registered mcdonalds.com back in 1994, why should it be determined that I must give up my domain name to a corporation? Or, in the case of thebarbies.com, simply hand it over? (By the way, I don't know who the first McDonalds was, or if he/she were engaged in cybersquatting, or if the name was registered, I simply use this as another obvious example).
Problem is, when the rule changed and business was allowed to populate the Internet, there were no parameters in place to prevent this kind of nonsense. If I register Sears.com because my name is Hans Sears, and I did this before Sears the corporation, and my site has nothing to do with Sears the corporation, well then I should be able to keep that name. It is completely irrelevant if somebody ends up on my website believing they are going to Sears.com the retail corporation. It is up to the consumer to find Sears the corporation on the Web. That's what search engines are for.
Every time the little guy wins, it encourages others to fight for their rights!
Fight Spammers!
They own a trademark for a lifelike rubber doll called "Barbie".
I know this is offtopic, but ... damn , what are you smoking? LIFELIKE? Sure.
The Slashdot Sig Virus
Hey, baby, infect me!
-30-
I think somebody should put up the "barbievote.com" web site. It would be one page which posed the following question with counters for each of the answers:
:-).
What do you think the term "Barbie Doll" most likely refers to:
1. An air-headed good looking blonde.
2. A image designed to repress women.
3. A plastic doll.
Needless to say, it shouldn't accept more than one vote from the same IP address....
It would be really interesting to see what Mattel's lawyers would do with such a site (especially if it had been up long enough to collect a lot of votes
An engineer who ran for Congress. http://herbrobinson.us
Barbie is a girls name.
Matels clame to the name should be restricted to Matels action figure type doll.
This dilution would effect Matels ability to create a Barbie first person shoter... Something that isn't likely to happen any time soon.
If Matels doll was named "Lora" then the group might be included to call themselfs "The Loras" or they may stuble accrost the name at random.
Or if Matel had named the doll "Sue" there are a number of soungs they could be suing. "A guy named sue" is one song that comes to mind.
The dilution exists becouse the name predates Matels product as the name of a person. Not in incredably commen name however that may be a matter of parents not wanting there children to be confused with a plastic toy.
Again... Matel should own the names rights compared to the product they allready make.
Also Trademark dose not give them ownership of the name like copyrights and patents.
The trademark only grants controll.
I can not use the name "Barbie" to produce my own action figures (in the United States, Mexico or the Moon.. it makes no diffrence.. I can not call it Barbie anyplace that recognises the trademark).
But "TheBarbies" are refering to the doll.. This is allowed... or they are refering to the fact that it's a girls name... also allowed due to pre-existing delusion.
Trade Mark dose not grant the right to control the context the name is used. Only what the name refers to. That is allready weak due to the fact that it is a girls name....
It is true they must fight dilution as they can not turn back the clock and undo the damage once it is done.
However... the damage was done... and turnning back the clock is exactly what they are trying to do.
The use of the name in this way dose not violate the trademark. It may strigthen it..... But the trademark holder would rather build up to a day when they can sue parents for naming there kids Barbie...
I don't actually exist.
At first glance I'd have to say, making a web site named "TheBarbies.com" is a blatent and obvious infringement. It is arguable whether TheBarbies.com is in a different market and thus not applicable to trademark infringement. However, I can see TheBarbies.com leading to confusion and dilution with Mattel's Barbie computer games, and if it ever wanted to put up Barbie sites.
It's 10 PM. Do you know if you're un-American?
Take a fist full of twenties out of your wallet, and hire a lawer to sit down and consult with you on the issue. Find out exactly what your rights are, how much the dispute is likely to cost, and whether you want to bother going to bat over something as trivial as a clan name.
Then at least you will know about the situation, and Knowing Is Half The Battle (tm).
Information wants to be anthropomorphized.
But seriously, the intent is not to piss everyone off. I am trying to make sure that when people think of Mattel's abuses, they think of my site. That they know the url, like most people know yahoo or /..
If I can coordinate the Mattel litgation, we (other people being abused by Mattel) can use other rulings against Mattel in our cases.
By sharing information, individuals can be stronger than an individual corporation. That if there is a ruling against a corporation, that ruling may be used against them by everyone. But that's only if you find out about it.
If a jury, when assesing punitive damages, know how much of a practice this has become for a company, will assess large amounts of damages. This might stop them from continuing.
Fight Spammers!
I think you have a point somewhere...
.|` Clouds cross the black moonlight,
I know what I think of all this. There was a show on telly in the UK here last night that even my landlord understood *why* I think domain-name 'trading' is immoral. When it comes to stealing e.g. David Beckenham's name from him to make money by selling it back - piss off. If you have no right or reasonable claim to the name, get lost.
As another corollary, if all you have to sell is your *name*, do the gene pool a favour and get off the planet - please? Be widget.co.uk by all means if you're a commercial seller of widgets in the UK, but don't be a mynamehere.com if you're not a world-wide commercial distributor of mynameheres, OK?
~Tim
--
~Tim
--
Rushing on down to the circle of the turn
>an absolutely colossal mountain of personal integrity
Well shit! That's about the best thing anyone has ever said about me (assuming he wasn't being sarcastic).
There is much cruelty in the universe, John.
Yeah, we seem to have the tour map.