Playboy Enterprises, Inc. v. Welles
Playboy Enterprises, Inc. v. Welles 60 F. Supp. 2d 1050 was a United States district court case between former 1981 Playboy Playmate of the Year ("PMOY") Terri Welles and Playboy Enterprises, Inc. in which Welles was accused of trademark infringement and trademark dilution in her use of Playboy's trademarked terms in the metatags of her website. Facts. Welles maintained a website which identified her as a former PMOY and displayed the registered trademarked terms Playboy, Playmate of the Year, and Playmate of the Month and the unregistered trademark "PMOY" in metatags, wallpaper, banner ads , and the masthead. Playboy sued Welles, claiming both trademark infringement and trademark dilution. Defendant was featured on the cover of a 1981 Playboy magazine. Defendant was a Playboy model and Playmate of the Year who used these trademarked terms to describe herself via her personal website. Plaintiff sued Defendant under two theories: trademark infringement and trademark dilution. Opinion of the Court. The Court held that nominative use (a type of fair use for discussing the product itself) is permitted where: Here, the Ninth Circuit Court applied the nominative fair use test to the defendant and concluded the Defendant's use  of these trademarked items was permissible because there was no other practical way for the Defendant to describe herself. The Plaintiff was relying on the decision in "Brookfield Communications, Inc. v. West Coast Entertainment Corp.", to support the contention that the Defendant's use of Playboy trademark in her web site infringes on its trademark by causing likelihood of confusion shown on the basis of initial interest confusion. However, the court added that the Plaintiff's reliance on "Brookfield" was misplaced. None of the cases which "Brookfield" discusses involved fair use defense or a use of trademarks in the metatags  which accurately and fairly described the contents of the web page or web site. The court defined Plaintiff's use of the theory of 'initial interest of confusion' as "confusion of 'consumer attention, even though no actual sale is finally completed as a result of the confusion." In order for this type confusion to be actionable under the Lanham Act, several factors must be reviewed: In this case, the Plaintiff failed to present any of the facts indicating: There was also no evidence Welles intended to divert Plaintiff's customers to her website by trading on Playboy's goodwill. This  intent was relevant since the court in Brookfield stated that in "Dr. Seuss", the Ninth Circuit explicitly recognized that the use of another's trademark in a manner calculated to capture initial consumer attention, even though no actual sale is finally completed as a result of the confusion, may be still an infringement." Brookfield at 1062. Conclusion. The court wanted to render an analysis that was flexible and reflective of "emerging technologies", but also wanted to uphold common sense principles of trademark law. On appeal "Playboy Enters. v. Welles" 279 F.3d 796 in 2002, the Ninth Circuit affirmed the district  court's conclusion with respect to Welles' use of metatags because the court considered the use nominative.