Alex Goodman
Journalism
Dec 13th 2010
My knowledge on the fashion doll market was limited growing up. If you asked me, I would probably say that all little girls played with Barbies. This notion changed however, one Christmas party in 2003. Sarah Marcus, my best friends little sister, had played with Barbies her whole life. When she came downstairs to socialize, her squat hand held on tightly to a fashion doll. When I asked her what she received for Christmas, she proudly revealed, a single member of Bratz Line. Their lips were pouty, and they had wide set eyeballs that were equipped with perfectly situated pupils that looked willing and ready to roll. Their “whatever” stance had won the heart of young Sarah, leaving her Barbie dolls in their solitary confinement.
I recently sent Sarah a Facebook message inquiring about her subconscious doll betrayal. “Ummmm i’m not really sure what u mean.” She replied, possessing the unfriendly 10th grade attitude I only vaguely remember. I took a different approach, and suggested that she tell me one reason why she chose Bratz dolls over Barbies. In what can only be characterized as a technological shrug, she responded: “I dunno I guess I just liked them more.” What Sarah saw, was her brother’s friend acting peculiar. What Sarah couldn’t see was that she was supporting an inherent superiority of a brand, a superiority that has lead to one of Mattel’s most expensive lawsuits.
In 2004 Bratz Dolls outsold Barbie Dolls in the United Kingdom, and Barbie Doll’s sales rates had dropped by 30% in the United States. In 2005, MGA (the conglomerate that
sponsors Bratz) filed a lawsuit against Mattel because their new line of Barbies called “My Scene” had apparently copied the “doe-eyed” look of the Bratz Dolls. That same year, Mattel sued MGA for 500 million dollars because the Bratz creator, Carter Bryant, had been working for Mattel when the idea of Bratz was conceived. On August 26th 2008, Mattel received only 100 of the 500 million dollars, because the court ruled that only the first line of Bratz dolls had truly infringed on Barbie’s aesthetic. Only four months later, District Judge Stephen G. Larson granted the permanent injunction requested by Mattel against MGA. Judge Larson ordered that MGA remove all Bratz products from store shelves. MGA appealed almost immediately, and the case went to trial on December 10, 2009. In July, 2009 the U.S. Court of Appeals for the Ninth Circuit declared Larson’s ruling “draconian” and granted MGA all of the rights to the Bratz franchise. On January 11, 2011 the case is going to trial yet again-- this time concerning Mattel’s allegations of illegal business conduct and theft of trade secrets against MGA.
Intellectual Property litigation serves to be one of the most subjective branches of law. In criminal defense law, there is tangible evidence left at the scene of the crime. In medical malpractice litigation there is biological evidence. Where is the evidence in copyright infringement? How does the court decide who has ownership over various intangible assets? Can someone really own words, an image, or this case, a concept?
On December 10th 2010, I visited intellectual property lawyer, Laura Cibas*. Ms. Cibas responds promptly to my-emails. When I suggest we meet at three thirty, she replies with a comment just as rife for interpretation as her practice: “Fine.” Cibas has a background in chemistry, dentistry, and over 15 years of diverse legal experience. Her specialty however, is in intellectual property and has also co-authored the book Developing a Patent Strategy. Cibas is ferociously typing when I arrive, and tells me to take a seat. She is clad in corporate America’s all-black sartorial code, even on casual Friday. “Do you like all my art?” She asks me, referring to the un-decorated beige room in which we are sitting. “We moved in here five months ago, and they haven’t provided any art. It’s pathetic.”
Cibas and I briefly critique the aesthetic of the new building--she rolls her eyes at the rock fountain in the front of the building. She shakes her head shamefully when I mention the black and white graphic on the elevator. She has a way of agreeing with me while still asserting her position of power. Her in court rapport is nonetheless maintained in the confines of her less-than personable corner office. I explain my intrigue with the Mattel v. Bratz case and at first Cibas gives me a quizzical look. She only momentarily leans back in her chair, before she says, “In my opinion, people are trying to copyright things that shouldn’t be copyrightable.”
Cibas' comments are direct, but every so often, she breaks to smile or to put her hand on her chin and pontificate. More often, she digresses to mention the ugly or “weird” design of the Bratz dolls. Cibas assures me that vague copyrights are making it much harder on infringement law. The line between what is mimicked, and what is an original idea is consistently getting blurred. In conjunction with the practice’s inherent subjectivity, technology has increased the number of intellectual property (or “IP” as it is often referred) lawsuits filed. “The internet and globalization is making it much harder to protect your brand,” Cibas tells me “Everyone is eating off each others brand.”
Cibas pulls up website entitled Alibaba.com, and we review the site together. She shows me various Bratz dolls that are made not by MGA, but by other knock off brands. Cibas explains to me that now Bratz are going after other copiers. The intellectual property field as been completely muddled by technology. Websites like Alibaba.com, where you can find just about anything, make the suits much harder to debate.
Cibas tells me that when she first started her cases were much clearer. “With the internet, its much harder to compare,” She pulls out a pen from her case, “Let’s say I wanted to compare this pen, to one on the internet. It becomes much more difficult because I’m comparing a tangible object to a picture.”
Cibas informs me that in the pre-internet era of intellectual property, people copied each other directly. It was easier to tell the fake from the original. With the increasing subjectivity of the practice Cibas reminds me that as an IP lawyer, you have to be very careful when addressing the differences between a copy and a derivative. In other words, something that inspires is not the same as a replica.
When I attempt to infer that the root of intellectual property is in the expression of the idea, the blonde forty something almost instinctually interjects. “Intellectual property is not the expression of the idea,” she tells me still browsing Alibaba.com “Copyright is the written word, it must be functioning.” And for that, reason Cibas explains, Mattel’s decision to declare infringement was nebulous. “What they should have gone after them for is trade dress. The look, and feel and feel of the object. It’s a presumption but you can still fight it in court.”
Bratz creator Carter Bryant, was improving upon a classic: he wanted to transform Barbie’s demure gaze into something with attitude, something the modern girl could relate to (though whether this is a positive or negative representation is contestable.) For Mattel, it was more than competition: it was infringement. Can we blame Carter Bryant for creating a derivative of the Barbie Doll? Can we blame Mattel for using litigation to sustain its spot in the toy marketplace?
Irrespective of the litigations outcome, Mattel appears to prevailing in the marketplace. Last week I mustered up the courage to visit the “Toys R US” in Times Square, just weeks before Christmas. As I fought my way to the second floor, I entered a light pink castle, boasting Barbie’s signature typeface. The castle walls were lined with Barbie paraphernalia; Barbie collectibles, Barbie ATV’s, Barbie Laptops. I felt like I was somewhere I shouldn’t be. I considered telling Shakia, the informative Toys R Us employee, that I was buying something for my non-existent little sister. I disposed of that hypothetical guise, and asked her the question I had been wondering for the past 10 minutes, as I treaded all over Barbie’s terrain: “Where are the Bratz dolls?” Shakia guided me to a shelf just a little outside of the conglomerate castle. The Bratz group was small, picked through, some decorated the floor, still stationary in the confines of their plastic box, which read: “I’m Carrie. My friends call me coconut cuz I’m tough but sweet.” MGA seems to promote dimensional personalities, but not grammar. Would the classic Barbie ever be so nonchalant? I pick up Carrie and examined her unusual face. “So do girls really like these more than Barbies?” I ask Shakia. She smiles, putting Carrie’s disciples back on the shelf “Can’t nobody top Barbie, she’s the most popular.”
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