FAQ

Mattel squares off against lesbian Barbie

For years now Barbie has been a major success for Mattell. Barbie is placed at no. 97 of the top 100 most important trademark in the world. Naturally her good image must be protected at all times. Argentine art couple Breno Costa en Guilherme Souza however, decided to make a Barbie calendar in which she poses with her lesbian lover. Mattell, of course, strongly disproves of this calendar, but how successful would a lawsuit in the Netherlands be?

The protection of Barbie’s physical characteristics falls under the scope of copyright. Unfortunately according to copyright legislation a parody is permitted. However, a parody should never unnecessarily damage the reputation of the original product or the reputation of its creator. Furthermore, a parody should never have a commercial or competitive element to it. It is therefore not allowed to make fun of the competition.

The calendar may be considered a work of art, one that protests our society and the use of sex as means of sale. Because of this contradiction a parody on Barbie could possibly be reasoned. Although the parody exception may give relief in some cases, it is a tricky business. Especially if a parody is being used by a competitor.

parody

Goodwill business / IP check

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IP Quiz

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IP quiz Trademarks

Puma is one of the bigger sports and lifestyle brands in the world. The core-business is the design, development and sale of (sports) shoes, (sports) clothing and accessories. In 1960, Puma registered an international trademark for a device designed in 1958: the formstrip. Since then, Puma has registered approximately 90 formstrip trademarks with validity in the Benelux or the European Union. Puma claims that this is a serial mark. Monshoe is a wholesaler of women's shoes and related products. The company designs and develops Monshoe shoes which it largely markets itself. Monshoe sells its women's shoes under the brands Shoecolate and Pearlz. The shoe Shoecolate is offered in various colour combinations. Puma claims that Monshoe infringes its well-known formstrip trademark. Monshoe contradicts this and states that the average consumer will not perceive the device of Monshoe on the sneakers as a trademark. And if the public will recognize a trademark in the decoration, it will not make the connection to Puma. According to Monshoe, the formstrip logo is not a well-known trademark within the meaning of the BVIE and the UMVo. There is no likelihood of confusion because the sign does not or hardly evoke any association with Puma among the public. In light of the above, who is right? Does this constitute decorative use or linking to a well-known trademark?

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