...and therefore, fair use. Mattel lost a trademark infringement case against Susanne Pitt (www.dungeondolls.com -- now-defunct) who was taking Barbie heads, attaching them to a body dressed, as she described, in "'Lederhosen-style' Bavarian bondage dress and a helmet in rubber with a PVC-mask and a waspie," and putting them into a sexually explicit setting on the website. The dolls were then offered for sale. The judge ruled that the design transformed rather than supplanted the original work and accepted Pitt's letter in self-defense which stated the dolls were a parody. To the court's knowledge there was no line of S&M Barbie, so there was no similary to an existing product.

Quoted from the decision:

"Defendant's customizing appears to have evoked the image of Barbie while transforming the Barbie doll sufficiently that the quality and quantity of her copying weigh against a judgment as a matter of law in favor of Plaintiff. It appears that there is slim to no likelihood that Dungeon Dolls would serve as a market substitute for Barbie dolls. The extent to which the context and character of the Dungeon Dolls transformed the unadorned Barbie head weighs against Plaintiff on the current record."

Even though Mattel is remaking Barbie, with bigger heads and poutier lips, the NY Times mentions no S&M Barbie for Mattel's latest product line, My Scene Barbie. Mattel has lost Barbie copyright actions before, including the "Barbie Girl" suit against Aqua and MCA. Today, they also lost a cybersquatting case regarding Barbie related domain names.

For another perspective on this subject, read Groucho Marx's letter to Warner Bros. regarding the use of the names Casablanca and Brothers as well as the possibility of the public confusing Ingrid Bergman with Harpo, etc.