The U.S. Federal Court of Appeals recently upheld a lower court decision dismissing an action brought by Mattel against MCA Records, alleging trade-mark infringement and dilution over the music company's 1997 hit song "Barbie Girl". Mattel, a toy company, owns the trade-mark rights to BARBIE. It is also the maker of the Barbie doll. In 1997, a pop band called Aqua produced a song titled "Barbie Girl" on its album Aquarium. In the song, one band member impersonates Barbie, singing in high pitch doll-like voice and another band member calling himself Ken entices Barbie to "Go Party". In its action, Mattel alleges that MCA's use of the term "Barbie" constitutes trade-mark infringement as it is likely to confuse consumers as to Mattel's affiliation with Barbie Girl or dilute the BARBIE mark. The Court of Appeals held that the use of "Barbie Girl" as a song title was not an infringement of Mattel's trade-mark because the song title was relevant to the underlying work and did not explicitly mislead the public as to the source of the work: it does not explicitly or otherwise suggest that it was produced by Mattel. The song was not purely commercial speech and was fully protected by the First Amendment. The use of the word BARBIE in the song fell within the non-commercial use exemption to the Federal Trademark Dilution Act. To view a copy of the case, visit:


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