PLAYBOY LOSES IN “META” KEY WORD CASE!

            One of the most interesting issues to evolve out of the new Website phenomena is the use of "meta tags." A meta tag is a type of HTML code or label, which is hidden in a Web page that the viewer does not see but the computer will read. It can include key words that search engines will link to the website when a viewer conducts a search.

            For example, a recent case in California had to decide whether such use constituted trademark infringement. The defendant, Terri Welles, who was a former employee of Playboy Enterprises and a former “Playmate of the Month” for Playboy Magazine, used the meta tags “Playmate of the Year 1981”, “Playboy” and “Playmate” as key words. She also used them in the visible portions of the site. The intent of this was to have searches for these words directed to her Website.

            Playboy of course, was disturbed over what it viewed as an infringement of its trademarks, and sued. The Court recently granted Summary Judgement to the defendant and dismissed the action, holding that use of these terms was “fair use” of the trademarks because they fairly described and identified her former status and achievements as a Playboy “Playmate”.

            The Judge noted in her decision that Playboy had failed to introduce “compelling evidence” of any consumer confusion over such use. Perhaps more meaningful to the photo industry and the world at large is that the Judge also said that the World Wide Web is a commercial market place and a free speech market place.

            To give consumers access to it, Courts must also be careful to give consumers the freedom to locate desired sites while protecting the integrity of trademarks and trade names.

            Whether or not this type of use will be permitted in other situations will depend upon a number of issues, including consumer confusion or deception of the public.

            Playboy has indicated its intent to appeal.