It takes a lively imagination to imagine Barbie — she of the balmy beach and the costume ball — winding up in the highest court of our land, but there she is — Barbie the beautiful, petitioner in Case No. 02-633, asking the justices to protect her trademark.

The case presents some interesting questions of trademark law. Seth P. Waxman, former solicitor general, has his high-powered name on Barbie's brief (not that brief, shame on you). He is asking the Supreme Court to overturn an opinion of the 9th Circuit denying Mattel Inc., makers of the Barbie doll, an injunction against MCA Records, sellers of a pop music recording called "Barbie Girl."

These are the facts. Mattel's Barbie doll was born in Germany in the mid-1950s as — how to phrase it? — as a collector's item for adults. From a German streetwalker, she swiftly morphed under Mattel's guidance into a long-legged American blonde. In that image Barbie is now 43 years old, though she doesn't look a day over 19. Following her creation in 1959, she went on to rack up phenomenal sales both here and abroad.

It is not only the basic Barbie doll that has made a fortune; Mattel also has marketed or licensed a string of Barbie products, including most notably Barbie country music, Barbie musical instruments and a recording of Barbie singing "Barbie: The Look." Mattel pushed its musical spin-offs in magazines and on the Nickelodeon cable TV channel.

In 1997 MCA Records began promoting a pop music recording called "Barbie Girl," performed by a Danish group known as Aqua. Like Mattel's Barbie products, MCA's compact disc was packaged in bright pink. MCA aimed at Barbie's constituency by advertising its recording on Saturday mornings and during after-school hours. MCA attempted to sell the recording through Toys 'R' Us and briefly offered a pink, heart-shaped purse called "Barbie Girl."

These marketing efforts proved highly successful. MCA sold 1.4 million copies of the "Barbie Girl" song. For a time it ranked among the top 40 recordings in its class. In part, this poignant ballad has Barbie singing to Ken, "I'm a blond bimbo girl, in a fantasy world. Dress me up, make it tight, I'm your dolly . . . Kiss me here, touch me there, hanky-panky, you can touch, you can play . . ." Ken tenderly responds, "Come on, Barbie, let's go party, ah ah ah yeah, Come on, Barbie, let's go party, ooh, ooh, ooh, ooh."

Mattel moved for an injunction, charging separately that the recording (1) infringed Mattel's trademark and (2) diluted the trademark's value. A panel of the 9th Circuit, speaking through Judge Alex Kozinski, denied both motions. True, said Kozinski, the recording targets Mattel's iconic Barbie doll. "The song pokes fun at Barbie and the values that Aqua contends she represents." The problem with infringement in this case is that Barbie's patrons have succeeded too well.

"Some trademarks enter our public discourse and became an integral part of our vocabulary. How else do you say that something's 'the Rolls-Royce of its class'? What else is a quick fix, but a Band-Aid? Trademarks often fill in gaps in our vocabulary and add a contemporary

flavor to our expressions. Once imbued with such expressive value, the trademark becomes a word in our language and assumes a role outside the bounds of trademark law."

As for trademark "dilution," Kozinski noted that the federal act exempts noncommercial use of so famous a name as Barbie's. It is immaterial that MCA appropriated Barbie's name to sell copies of the song. The ballad is parody — it lampoons the Barbie image and comments humorously on the cultural values Aqua claims she represents. The First Amendment applies.

The Supreme Court heard argument just last week on a trademark dilution case that went the other way. Victor and Cathy Moseley had opened a retail store in Elizabethtown, Ky., under the name of Victor's Little Secret, selling lingerie, sex toys and adult videos. The trademark owners of Victoria's Secret, operators of 750 stores worldwide, sued the Moseleys under the 1995 Trademark Dilution Act. The 6th Circuit agreed that "Victor's Little Secret" tarnished and blurred the iconic "Victoria's Secret," and granted an injunction.

The case of Victor's Little Secret turned on statutory law. Barbie involves a constitutional question. My own sympathies lie with the offended Mattel and the lissome Barbie. Those Danish songwriters, with their suggestive ah, yeahs and ooh, oohs, made money for MCA by tarnishing the trademarked image of a beloved figure. Go get 'em, Ken!


E-mail Jack Kilpatrick at kilpatjj@aol.com.