Playboy alleges in its federal lawsuit that Excite and Netscape are violating its trademark by serving up other companies' banner ads when surfers seek out the magazine's Web site. Excite's search technology powers Netscape's portal.
Playboy is relentless in its legal fight to protect its well-known brand on the Net. Although the company lost a case against a former Playmate who used the Playboy name on her personal Web site, the company has prevailed against Web operators that have lifted its photos or embedded Playboy's name via a "metatag" within the code of their site--a tactic that drives traffic from online search engines.
In the metatag case it was individual sites that used Playboy's name to harness traffic from search engines. Now the media veteran is accusing Excite and Netscape of doing the same damage by exploiting Playboy's name to beef up traffic for "x-rated" advertisers as well as the magazine's competitors, such as Hustler and Penthouse.
"Excite has hijacked and usurped Playboy Enterprises' good reputation by exploiting a search based on Playboy's [trade]mark as an opportunity to run banner advertisements and display directories specifically keyed to Playboys marks," the complaint filed in the U.S. District Court of the Central District of California states.
Neither Playboy, Excite, nor Netscape would comment on the lawsuit.
It is unclear whether the portals actually have sold Playboy's name as a keyword, or whether they have lumped Playboy into an "adult" or "sex" site category that always generates the hard-core ad banners.
Playboy argues that its name has been sold with the willful intent of being linked to the ads.
"Excite has designed its page-serving technology to intentionally confuse consumers even further when the Playboy trademark is used as a search term," the complaint states. "Netscape, for a fee, causes a certain selected group of advertisements to appear whenever a user of [its] search engine enters a Playboy trademark as a search term."
Legal experts agree that the case could blaze the trail for new trademark protections on the Net. A similar case now is underway involving Estée Lauder and the The Fragrance Counter. Estée Lauder sued the company arguing that Net users got a Fragrance Counter ad banner when they searched for Estée Lauder using Excite's WebCrawler, and that Estée Lauder's name was used on the banner without the company's permission.
"The use of keywords that are the trademark property of someone else to deliver ads for their competitors gives rise to several different legal causes of action," said Eric Goldman an attorney specializing in cyberlaw at Cooley Godward.
"This is a standard practice for the search engines and it helps them make a lot of money," Goldman added. "We are in a new legal area here."
Other online search engines have polices in place for dealing with the sale of trademarked keywords.
Lycos, for example, states that advertisers are given a "first right" to their "exact company name and trademarks for keyword/phrase advertising," and that "If two or more advertisers have the same name or trademark, the allocation will be on a first-come basis."