Barbie, the fashion doll that has gone so many places in the fantasies of young girls, will find herself centre stage at the Supreme Court of Canada in Ottawa on Tuesday.
The owner of Barbie's trademark, Mattel Inc., is asking the top court to stop a small Montreal restaurant chain called Barbie's from registering the name for use across the county in the restaurant, takeout and catering business.
The case, which pits a huge U.S.-based multinational corporation against a tiny, three-restaurant operation, is seen as a key test of just how much copyright protection a famous brand can expect.
So far, the restaurant has won at every level, from the Trade-marks Opposition Board in 2002 to the Federal Court of Appeal last January. Mattel now has one last chance to make its case in front of the Supreme Court.
For Spiro Christopoulos, the president of Barbie's restaurants, the case is a matter of a corporate giant using its massive resources to go after a small business.
"If they disallow Barbie's to be registered [by us] it allows Mattel to monopolize the name in every area of goods and services," he said in an interview.
"Today it's Barbie's, tomorrow it will be Kelly's, after tomorrow it will be Mary's. If we look at the span of 50 years, half the names will be registered by big corporations and multinationals."
Mr. Christopoulos said Mattel's complaint about improper use of the trademark makes no sense because the dolls are sold to girls between the ages of three and eleven, while his restaurant caters almost exclusively to adults.
The name Barbie's was chosen when his first restaurant opened in 1992, he said, because it suggests that there is a bar where drinks are sold, and that there is barbecued food on the menu.
Mattel disagrees, saying in its court filings that the restaurant has "no credible basis for choosing Barbie's, except to take advantage of Mattel's famous mark."
For the California-based toy company, the key issue at stake is whether the Barbie name on the restaurants causes confusion among customers, who might be prone to think there is some link to the doll brand.
The firm says it is worried that if the restaurant gets a national trademark, it could expand anywhere and could even open Barbie's restaurants with a doll theme to target young girls.
Mattel argues that the lower courts were mistaken when they ruled there is no confusion because the business of the restaurant is so different from that of the toy company.
Mattel cites a section of the Trademarks Act, which says one brand can cause confusion with another trademark if its use suggests the products come from the same source "whether or not the wares or services are of the same general class."
In their written submissions to the Supreme Court, Mattel's lawyers argue that "fame itself can and does create a connection in the mind of the ordinary consumer who first sees a famous mark in a new context."
Still, the courts have been loath to grant protection to a trademark when there is little relation between the famous brand and another product.
The most often-cited case is one that went to the Federal Court of Appeal in 1998, where United Artists Corp. tried to stop a hair-care and beauty-products company from calling itself Pink Panther Beauty Corp.
A majority of the judges said consumers would not be confused between the Pink Panther movies and the hair products because of the "gaping divergence in the nature of the wares. . . . It is not a fissure but a chasm."