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But How Does Mattel Feel About "The Barbie"?

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ANNALS OF TRADEMARK PROTECTION
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The Atlantic's Marie Myung-Ok Lee ponders the rush of doctors "tired of toiling in the time-intensive and high-liability fields of traditional obstetrics and gynecology" into the expanding, lucrative field of “cosmetic-gyn.”

Attending the fifth annual Congress on Aesthetic Vaginal Surgery last fall, Lee says "OB-GYNs groused that even after they’ve amassed hundreds of thousands of dollars in medical-training debt, their insurance reimbursements are lousy. One doctor said he receives just $1,700 in fees for prenatal care and delivery, and a mere $800 for a hysterectomy. By contrast, a labiaplasty can be done in just a few hours, in-office, for a fee upwards of $5,000 and no 'income socialism' to spread the proceeds among hospitals, insurers, and group-practice partners. Underscoring just what this can mean, one conference presenter left his computer’s wallpaper—rotating images of him with his red Porsche 911—up in the background during his PowerPoint lecture. The message was tough to miss: practice cosmetic-gyn, and you too can live the life of a plastic surgeon."

The man hosting the event, and the pioneer of an extremely popular cosmetic-gyn procedure called "The Barbie," was one Dr. Red Alinsod, a California physician who was once sued for branding a woman's name on her uterus after removing it -- he referred to this in court papers as a "friendly gesture."

Lee describes The Barbie as a "procedure in which the labia minora are completely amputated to create a 'smooth' genital look. Angela Bonavoglia of the Women's Media Center, who attended the “first-ever Global Symposium on Cosmetic Vaginal Surgery" some months earlier, reports that doctors at her seminar were near-obsessed with The Barbie, describing labiaplasty as a way to "correct" certain body parts that are “too large, loose, floppy, bulky, excessive, uneven, redundant, or overpigmented.”

So, how does Mattel feel about The Barbie?

Despite repeated calls, no one was available for comment. But, according to publicly available records, Mattel is not afraid to litigate in even the flimsiest of trademark cases.

In court documents from 2002,
Mattel argues that "Aqua is a Danish band that has, as yet, only dreamed of attaining Barbie-like status. In 1997, Aqua produced the song Barbie Girl on the album Aquarium. In the song, one bandmember impersonates Barbie, singing in a high-pitched, doll-like voice; another bandmember, calling himself Ken, entices Barbie to 'go party.' Barbie Girl singles sold well and, to Mattel's dismay, the song made it onto Top 40 music charts."

Mattel went down swinging. Legal blog Compliance Matters writes:

The court held this was a true parody protected by First Amendment and the song was a commentary "about Barbie and the values . . . she [supposedly] represents." Because the song was about Barbie, "the use of Barbie in the song title clearly is relevant to the underlying work.”

Mattel took another shot, bringing a second claim under the Federal Trademark Dilution Act, 15 U.S.C. Section 1125, arguing that the song "diminished Barbie's capacity to identify and distinguish Mattel's products and tarnished the mark because the song is inappropriate for young girls."

They were denied once again, by the 9th Circuit court.

Mattel has also gone after a photographer who used Barbie dolls in his work (Thomas Forsythe was hauled into court over his  “Food Chain Barbie” series, in which Barbies are menaced by vintage kitchen appliances to criticize the “objectification of women associated with Barbie”), and tried to force a Canadian stripper named Barbie Doll Benson to turn over her Internet domain name, BarbieBenson.com, claiming trademark infringement.

Benson, who had been dancing for 16 years as "Barbie" without complaint, prevailed. As did Thomas Forsythe, who won his case on First Amendment grounds and was reimbursed for his legal fees after a judge ordered Mattel to do so.

Perhaps most disturbing is a question posed in the FAQ section of Red Alinsod's website:

Q: Can I combine the vaginal surgeries with other surgeries?

A: Yes. We do “North-South Face Lifts” quite often.

Jeez. It's only a matter of time before everyone's favorite outerwear manufacturer serves papers.

POSITION:  No positions in stocks mentioned.

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