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December 7, 2017

No tarnishment of trademark by parody song protected as fundamental right of free speech

In its November 22 order, The Delhi High Court refused to grant Mattel, owner of BARBIE, an ex-parte injunction sought to restrain the release of a Hindi film featuring BARBIE in one of its songs. Mattel alleged that its BARBIE mark was being tarnished by the association with the song, which was allegedly provocative and inappropriate for its target consumer. The ex-parte relief was denied on the grounds, inter alia, that –

1. Grant of such a restraint would damage the right to freedom of speech and expression, and be against public interest; and

2. Use by the defendants of the mark BARBIE in the song is akin to a parody of Barbie as opposed to infringement.

Notably, reliance was placed on the decision of US Court of Appeals (Ninth Circuit), denying Mattel relief against use of BARBIE in a pop song by the band Aqua, which seems to have been accorded strong persuasive value.

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