Lodging a roadblock in Playboy Enterprises' $5 million trademark lawsuit against a former centerfold, a federal judge secured Terri Welles's right to use the word "Playmate" on her digital resume and to drive traffic to her Web site.
Welles, who was Playmate of the Year in 1981, was sued by the magazine publisher in March for using the title on her adult site, where she sells autographed photos, a newsletter, and memberships to a club that gives fans exclusive access to nude photos of Welles.
The federal court in Southern California yesterday denied Playboy's request for a preliminary injunction against Welles. Although Playboy can present new evidence and press the case forward, U.S. District Judge Judith Keep's decision sided with Welles on all counts, stating that the model has a right to use the word "Playmate" when describing her career and to catalog her site in Net search engines.
Playboy Enterprises--which runs its own profitable Net site--filed the lawsuit to stop Welles from using its trademarks "Playboy," "Playmate of the Month," "Playmate of the Year," and the initials "PMOY." In addition, Playboy wanted to prevent Welles from embedding the terms in the code of her site, using "metatags," which help search engines find the site when surfers plug in the tagged terms, such as "Playboy."
Playboy, which has been an aggressive protector of its trademarks and copyrights on the Net, said despite this week's major setback it will not drop the suit.
"We definitely intend to pursue the case," Playboy spokeswoman Rebecca Theim said today. "We feel this ruling is flawed in several ways related to trademark law, and we're optimistic about our chances going forward."
Just yesterday, Playboy announced that a Virginia court awarded it $3 million from two Hong Kong-based pornographic Net sites that wrongfully used Playboy's trademarks in metatags. But those sites have no affiliation with Playboy and were judged to be confusing consumers who were looking for Playboy.
On the other hand, Welles contended that because she used to work for the media company, her site's content was logically related to Playboy and she was justified in her use of the terms in metatags.
Playboy still argued that Welles was free to leverage her title--but not in a effort to compete with the company.
However, the judge found in favor of Welles, stating she is entitled to "fair use" of the trademarks, and that her site was not "diluting" Playboy's trademarks.
"The problem in this case is that the trademarks [Welles] uses, and the manner in which she uses them, describe her identity," Judge Judith Keep stated in her ruling.
"Ms. Welles has not created a Playboy-related Web site," the judge continued. "She does not use 'Playboy' or 'Playmate' in her domain name; she does not use the classic Playboy bunny logo; she inserted disclaimers which clearly state that the Web site is not endorsed by Playboy Enterprises and the font of the 'Playmate of the Year 1981' title is not recognizable as a Playboy magazine font."
Furthermore, Welles was given the green light to use the term "Playmate" in metatags. Judge Keep stated that "the defendant has used the plaintiff's trademarks in a good faith to index the content of her Web site," and that "much like the subject index of a card catalog, the metatags give the Web surfer using a search engine a clearer indication of the content of the Web site."
Welles said she is confident she will win outright if Playboy proceeds with the case.
"I'm very happy, but I knew all along that I was right," she added today.
"Being a single mom, the site allows me to work in my pajamas, at my computer, and out of my house," Welles noted. "That's why I fought so hard, because this is my job and my livelihood."