Playboy loses infringement suit against Playmate of the Year
Date: Sunday February 17 2002, @03:42AM
Topic: Lawsuits and Judicial Decisions

In an important ruling on the use of trademarks on the net, the 9th Circuit Court of Appeals has ruled in the case of Welles. v. Playboy that Terri Welles' use of the words "Playboy" and "Playmate of the Year" on her website does not constitute infringement of Playboy's registered and well-known trademarks.

Welles was Playboy's Playmate of the Year for 1981, and splashes that information liberally across her website (at which she, apparently, "bares all"), as well as in her site's metatags (to make sure that users searching for "Playboy" or "Playmate of the Year" find their way to her site). The court said that this is "permissible nominative use" of Playboy's trademarks - that is, the use implies no endorsement or sponsorship by Playboy, Inc., but merely serves to "identify the thing," - in this case, to identify Welles and the goods and services she is now offering -"rather than to identify its source." Because there's no other effective way to describe this particular attribute of Welles' resume - it would be "impractical as well as ineffectual," the court notes, to require Welles to describe herself as "the nude model selected by Mr. Hefner's magazine as its number-one prototypical woman for the year 1981" - there's no infringement.

The court also said that where another's trademark is used in this "nominative" sense, there can be no dilution of the trademark; for Welles to (truthfully) identify herself as the recipient of the Playmate of the Year award does not, and cannot, create "an improper association in consumer's minds between a new product and the trademark holder's mark."

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