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Model prevails in Playboy case

A former Playboy model wins another round in her legal fight to describe herself online as a "Playmate of the Year."

A former Playboy model has won another round in her legal fight to describe herself online as a "Playmate of the Year."

Model Terri Welles, who was Playboy's 1981 Playmate of the Year, maintains a Web site where she sells photos of herself and advertises her services as a model.

In March, Playboy sued Welles for trademark infringement, saying she did not have the right to use Playboy's trademarked terms on a competing adult Web site. The company sought $5 million in damages, and asked a judge to force Welles to pull the Playboy references from her site immediately.

But thus far, courts have not been sympathetic to the adult publisher's arguments. In April, a judge denied Playboy's request for a preliminary injunction against Welles, saying the company had not shown it was likely to win its case. Last week, a Ninth Circuit panel of appeals judges upheld that decision, giving Welles the right to use the Playboy name online while the legal dispute is being resolved.

And continue it will, according to Playboy. "We feel very strongly about this, and that's why we're going forward," said Cindy Rackowitz, the company's president of Playmate promotions. "We feel the decision was procedural, and has no bearing on the merits of the case."

The company is even looking to expand the case. Attorneys asked the court late last month to add Welles's former Webmaster, Stephen Huntington, to the lawsuit. The company also wants to add a claim that Welles counterfeited its trademark by using the Playboy references on her site, according to documents filed with the court.

Welles said she would continue to fight the publishing giant, although she has already spent about $120,000 in legal fees on the case. "Especially with the judge's last ruling, why would I stop now?" she said.

The site has supported her for much of the last year, Welles added. "I'm a single mother, and this is the bulk of the money I use to support my life, and support my daughter," she said. "This is my business."

Playboy's own successful Web site has beefed up its trademark adult content with links to news, games, and other portal-style material. But it also maintains a "Cyber Club" where photos of past Playboy Playmates are posted.

The company has aggressively protected its trademark online, suing several other companies that allegedly pirated its photos or used the Playboy name in HTML metatags in attempts to attract traffic.

Welles uses the Playboy name in her metatags, describes herself as Playmate of the Year and uses Playboy's "POTY" abbreviation on her site. But in the April decision, the judge said these terms aptly described Welles, and were not an attempt to mislead visitors.

"It is clear that [the] defendant is selling Terry Welles and only Terri Welles on the Web site. There is no overt attempt to confuse the Web surfer into believing that her site is a Playboy-related Web site," wrote district court judge Judith Keep.

"Given that Ms. Welles is the "Playmate of the Year 1981," there is no other way that [she] can identify or describe herself and her services without venturing into absurd descriptive phrases," Keep added.

A pre-trial hearing for arguments in the case has been scheduled for next April.