<nettime> The Mattel Crackdown

[Wolfgang Staehle <wolfgang@thing.net>]

A few weeks ago, a scattershot intimidation attempt by lawyers for Mattel,
Inc. caused numerous sites featuring the Mattel trademark doll BARBIE to
shut down or alter their sites significantly.  THE THING received the
following letter on October 28: 

---quote-------------------------------------------------------------------------------

                             WILLIAM DUNNEGAN     
                             ATTORNEY AT LAW
                             720 FIFTH AVENUE
                          NEW YORK, NEW YORK 10019



                
                            October 21, 1997

Mr. Wolfgang Staehle
THE THING International
601 West 26th Street
New York, NY 10001

                       Re: Barbie Trademark Dilution

Dear Staehle:
  
       I am an attorney for Mattel, Inc.

       As you may know, Mattel owns the trademark BARBIE, as well as
numerouis federal registrations for that mark.  The BARBIE trademark has
been used consistently since at least 1959.  In connection with that use,
Mattel and its licensees have sold billions of dollars of merchandise. 
BARBIE is therrefore an extraordinarily valuable and famous trademark. 

       I am writing because Mattel has learned that you are sponsoring the
following page on the Internet. 

http://www.thing.net/~gh/artdirect/homey.html

There can be no doubt that this page unlawfully dilutes the BARBIE
trademark in violation of 15 U.S.C. section 1125(c). 

       In addition to pursuing whatever additional rights it may have
under law, Mattel demands that you (i) immediately take whatever steps are
necessary to remove this page from the Internet and (ii) confirm to me in
writing within 5 business days that you have done so. 

       We await your response.

                                
                                       Sincerely yours
                                       [signed]
                                       William Dunnegan

---end
quote---------------------------------------------------------------------------

The site in question is the work of NY artist G.H. Hovagimyan and clearly
qualifies as a parody.  It is interesting that Mattel decided to go after
the ISPs first and not after the authors and owners of the pages. Note how
they try to insinuate that the ISPs "sponsor" these pages. 

This not-so-subtle attempt to hold providers liable scared Interport (a
local NY service provider) into demanding the removal of a personal
website from one of its users. 

---quote-------------------------------------------------------------------------------

From: Phillip Kim 
Subject: Personal Web Site
To: napier (The Distorted Barbie)
Date: Thu, 16 Oct 1997 15:41:23 -0400 (EDT)

Mr. Mark Napier
451 East 14th St
Apt #12H
New York, NY 10009

16 October 1997

Dear Mark,

My name is Phillip Kim, and I am Vice President of Interport
Communications Corp. We recently received a letter from Mattel, Inc.'s
attorney which claims that a section of your Web site which you maintain
on our service is an infringement on Mattel's BARBIE copyright. The
address of the Web page is: 

http://www.users.interport.net/~napier/barbie/barbie.html


This is the first time Interport management has been made aware of the
content of this particular Web page. Interport is not qualified to verify
Mattel's claim and has absolutely no opinion on whether Mattel's claim is
true or not. Regardless, Interport is in a position of potential
liability; Internet Service Providers have been found liable for the
copyright infringements of their users in past court cases. Again, we make
no statement that a copyright infringement exists. However one may agree
or disagree with this existing environment, Interport is compelled to act
accordingly in a manner which limits our liability. We hope that you would
appreciate our position and, as such, voluntarily remove the Web page from
the Internet until the issue is resolved between Mattel, Inc.  and
yourself. Interport must have the Web page removed as of Wednesday 22
October 1997. 

If you have any questions, please contact me at 212.989.1128 ext 205.
Mattel's attorney, should you wish to contact him, is: 

William Dunnegan
Attorney at Law
720 Fifth Avenue
New York, NY 10019
212.397.7000

I have sent this letter via regular mail which also includes a copy of
Mattel's letter. Thank you for your prompt attention to the matter, and I
apologize for any inconvenience it may cause you. 

Sincerely,

Phillip Kim
Vice President
Interport Communications Corp.

---end
quote---------------------------------------------------------------------


I don't know about any specific court cases in which Internet Service
Providers have been found liable for alleged or actual copyright
infringements of their users.  If anyone can provide me with information
about similar cases I would appreciate it.  I would tend to think that
with the CDA rejected there is no ground for such a law suit.  Providers
simply can't be held liable for everything that goes over their servers. 

THE THING responded to the lawyer arguing that they should settle the
matter with the artist first and provide clear proof that the pages are
against US law. 

G.H. Hovagimyan defended himself in a letter to Dunnegan claiming "fair
use."

As of today, November 22, 1997, neither G.H. Hovagimyan nor THE THING has
heard back from the lawyer. 

You can read the Napier story at Hotwired:   
http://wwww.hotwired.com/surf/97/43/index4a.html

Or you can read the discussions on THE THING's messageboard "New Stuff":
http://www.thing.net  

Both sites offer zipped versions of Napier's and/or Hovagimyan's site
to set up as mirror sites.  Just to give Mattel's lawyers a good run for
their money!
   
An just for the fun of it try out the "Klaus Barbie" doll (requires
shockwave): http://www.artcomic.com/shock75.html Apparently the Art comics
syndicate received an identical letter from Dunnegan. 

-- Wolfgang Staehle <wolfgang@thing.net>

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