From The Search Engine Report
Dec. 6, 1999
There's been a lot of legal action revolving around search engines recently, and especially last week. Below is a summary of the various cases. As a disclaimer, I was the search engine expert for Terri Welles, in the first case described, and I'm working as a consultant for Carla Virga's legal team.
You may recall the case involving Playboy and Terri Welles, the 1981 Playmate of the Year. In it, Playboy sued Welles for among other things, trademark infringement. Her use of the terms "playboy" and "playmate" in her meta tags was one of the central points in Playboy's argument of infringement. In April 1998, the US District Court in San Diego refused to grant Playboy a preliminary injunction against Welles, finding she had used the terms appropriately and fairly to describe herself.
The case didn't stop there. Playboy filed amended complaints against Welles, claiming again trademark infringement, among other grievances. Welles filed a countersuit against Playboy, claiming that Playboy had harmed her reputation, hindered her business and was liable to her for damages. Last week, both cases were dismissed.
The case against Welles wasn't just about meta tag usage, but I will focus on that particular aspect, since it will be of interest to most readers. The key points in Welles' favor regarding the meta tag issue, from my reading of Judge Judith Keep's opinion, are as follows:
1) There was no likelihood of confusion between the Welles' site and the Playboy web sites.
2) Welles' site did not prevent significant numbers of people from reaching the Playboy web sites.
3) There was no evidence Welles intended to divert customers from the Playboy web sites to her site.
4) Overall, Welles' usage of the words in her meta tags was fair use and thus allowable.
"Finding that Ms. Welles' use of [Playboy's” trademarked terms in the metatags of her website is a fair use comports with the fact web users must utilize identifying words to find their intended site. Not all web searches utilizing the words 'Playboy,' 'Playmate,' and 'Playboy Playmate of the Year 1981' are intended to find 'Playboy' goods of the official 'Playboy' site. Plaintiff has not addressed the fact that Ms. Welles' fame and recognition derive from her popularity as a Playboy model and Playmate of the Year. If a consumer cannot remember her name, the logical way to find her site on the web is by using key words that identify her source of recognition to the public," wrote Judge Keep.
I don't think this ruling bodes well for Terminix, which in a different case, has filed suit against a woman who put up a protest site complaining about the pest control company. One would assume this will be an open-and-shut case -- Carla Virga's site is non-commercial, making it more a free speech case than a trademark infringement issue. Once again, trademark usage in meta tags is being hyped as some type of ultimate proof of wrong-doing. I think those filing these cases against people with strong claims, such as with Welles and Virga, are going to discover that trotting out the specter of "hidden" meta code won't make up for a weak case.
Meanwhile, back to Playboy. In another case earlier this year, Playboy sued Excite and Netscape for selling banner ads linked to its trademarks. Its request for a preliminary injunction was dismissed in July. The company appealed, and that appeal was just dismissed on Nov. 15.
Another case, this one against image search engine Ditto.com (formerly ArribaVista) by photographer Les Kelly, has resulted in a preliminary finding in mid-November that the service's display of thumbnail images does not infringe the copyright of artists whose work it finds by crawling the web. A final ruling may come down at anytime.
And finally, back to images -- this time the dispute between GoTo.com and Go.com. GoTo won a preliminary injunction forcing Go to remove its logo for being to similar to GoTo's. Then, after Go replaced its logo, it won a 30-day reprieve. Now the old logo is back, at least temporarily.
Terri Welles Lawsuit Page
Has past filings about the lawsuits -- will likely be updated.
Terminix Lawsuit Aims To Mute a Web Critic
Wall St. Journal, Dec. 3, 1999
Nice summary of the Terminix case, for those with subscription access to the Journal.
Carla Virga's Legal Brief
Carla Virga's Protest Site
Thumbnail not even a tiny infringement
National Law Journal, Dec. 6, 1999
Details of the image search lawsuit.
Disney's Go.com gets green light for 30 days
Reuters/Variety, Nov. 18, 1999
Disney: Giving up logo could cost $40 million
Bloomberg, Nov. 15, 1999
Search Engine Lawsuits
Links and information about most of the suits above, and other legal issues involving search engines, can be found on this page.