Wednesday, September 12, 2001
Playboy, Playmate Joust Over Meta Tags Before Ninth Circuit Panel
By a MetNews Staff Writer
A former “Playmate of the Year” should be enjoined from using “Playboy” and other trademarked words on a website she uses to sell erotica, an attorney for Playboy Enterprises told a Ninth U.S. Circuit Court of Appeals panel yesterday.
“We have evidence that people looking for Playboy [websites] got to the site” that Terri Welles uses, Ronald L. Johnston of Arnold & Porter told the court. Playboy claims that Welles has been diverting commercial traffic from Playboy’s sites by using its trademarks in her meta tags—invisible labels that draw the attention of Internet search engines.
Welles counterclaimed, alleging she was defamed in a newspaper interview that quoted a Playboy lawyer as saying she had “hijacked” the company’s site. The former flight attendant, model, and sometimes actress claims the comment implied she had committed a crime.
U.S. District Judge Judith Keep granted Welles summary judgment on the infringement claim, holding that the 1981 Playmate of the Year had made “fair use” of that descriptive title and related words in the meta tags as well as the rest of the site, www.terriwelles.com. But she ruled for Playboy on the defamation cause of action and related claims.
Keep had earlier denied Playboy’s preliminary injunction motion, a ruling affirmed by the Ninth Circuit.
Johnston conceded yesterday, in response to a question from Judge Marsha Berzon, that while there was evidence of diversion, there was no evidence that anyone was actually confused into thinking that Welles’ site was maintained or operated by Playboy.
But confusion could be inferred from the other evidence, including the sheer volume of traffic diverted, he argued.
Welles’ lawyer, David J. Noonan of San Diego, told the panel that Welles’ use of “Playboy” and “Playmate” was completely innocent. “The purpose of meta tags is to assist [web] searchers in identifying relevant material,” he explained.
There were, he added, “many, many uses” of the words in question, so they were not unique to Playboy Enterprises’ trade.
Welles, he noted, has a disclaimer on her home page explaining that her website “is neither endorsed, nor sponsored by, nor affiliated with Playboy Enterprises, Inc.,” and that “PLAYBOY®, PLAYMATE OF THE YEAR® and PLAYMATE OF THE MONTH® are registered trademarks of Playboy Enterprises, Inc.”
With regard to the defamation claim, Noonan said the trial judge was wrong in concluding that Welles was a public figure, saying she had no intention of being drawn into a public controversy over web code.
“She testified she didn’t know a meta tag from Metamucil,” her lawyer related.
But Berzon suggested that Welles might have been a public figure before she went high-tech. One source, the appellate jurist recalled, had suggested with some humor that “showing her figure in public made her a public figure.”
Welles received a good deal of publicity in the 1980s, in part because of her success modeling for Playboy and in part due to her marriage to Charlie Simmer, then a high-scoring forward on the Los Angeles Kings hockey team. Simmer, once asked why Welles wasn’t at a press conference called to announce his re-signing, reportedly said she was “probably taking off her clothes somewhere.”
The marriage “did not go into overtime,” Welles says on her website.
Anthony Glassman, a Beverly Hills attorney and veteran of media cases who represents Playboy on the counterclaim, said that while the lack of actual malice was fatal to Welles’ claim, the issue was far less complicated.
There is, he argued, simply nothing defamatory about the statement. A number of cases, he noted, have held that words like “blackmail” or “traitor,” while literally connoting a crime, aren’t defamatory if it is clear from the context that the speaker is merely using hyperbole to express disapproval of the subject’s conduct.
Copyright 2001, Metropolitan News Company