Fair use or infringement? A hobby magazine for Barbie enthusiasts ran afoul of Mattell. Now the toy maker wants financial damages for trademark infringement

Folio: The Magazine for Magazine Management, Nov 1, 1997 by Phillip M. Perry

Unfortunately, this pressures the magazine to produce only favorable copy. "If the vendor doesn't like what you have to say about those products, there is a risk it will take action," says Gillen.

Unflattering editorial

At least one person thinks that discontent with editorial may in fact have sparked the Miller case: "Sometimes the magazine would truthfully publish some things that may have been seen as critical of Mattel," says Lynch. "Maybe that's what got Mattel upset enough to file a lawsuit. Not every word is entirely flattering." Indeed, one of the specific acts to which Mattel objects in its court papers is "Misusing, diluting and denigrating Mattel's brands by failing to use descriptors, and by publishing disparaging articles in the publication."

As this case makes its way through the courts, the Millers are forging ahead. "I definitely feel we have the right to be in this business," says Dan Miller. "We promote Barbie Doll collecting, and that has made Mattel a lot of money. So you have to ask: What is their reason for filing this suit?"

The Miller case highlights the risks magazines take when using trademarked material on covers or inside pages. While publishers may fervently hope their subjects look the other way in the name of mutual profit, there are no guarantees that a symbiotic relationship will not turn into a pitched battle.

Phillip M. Perry is a New York City-based writer specializing in the law.