Business First of Columbus

June 6, 1999

JUDGE TELLS MAG PLAYMATE TITLE MODEL’S FOR LIFE

Today's mature celebrities often have been embarrassed by nude pictures taken when they were young nobodies.

In a twist, Terri Welles flaunted her youthful indiscretion on the Internet, and Playboy sued her for trademark infringement.

While Playboy may try to amend its lawsuit, Welles seemed to be winning in this recent example of the battle over copyright protection on the Internet.

Welles, Playmate of the Year in 1981, uses the title on her Web site. She sells nude pictures of her current 40-year-old self.

Net surfers using the terms "Playmate" and "Playmate of the Year," could be directed to Welles' site instead of, or in addition to, Playboy's site. That's because Welles has used those terms as metatags.

"A metatag is a piece of source code," said Joseph Dreitler, attorney specializing in trademark law at Vorys Sater Seymour and Pease.

Metatags do not pop on the screen as users Net surf. Because they are embedded in the site's code, search engines will detect those words and flag the page in the search results.

"What a lot of people have done, especially in adult sites, is put metatags in there to divert a Web surfer," Dreitler said.

A user searching for "Playboy" on a search engine will get results from any site that has the metatag "Playboy."

Dreitler said Playboy has been aggressive at suing for trademark infringement when its name has been illegally used. "They have had success at stopping it when it is clear someone was using it to divert traffic from the Playboy home site," he said.

The company sued Welles in federal court in California last year. The court denied the company's request for a preliminary injunction to stop Welles from using the word "Playmate," on her site. The judge sided with Welles. The decision compared Welles' 1981 accomplishment to Academy Award winners, Miss Americas and Heisman Trophy winners.

"Playmates are given a title which becomes part of their identity and adds value to their name. The title becomes who they are to the public," the decision stated.

Playboy lost on appeal. Welles' Web site is http://www.terriwelles.com/.

Dreitler said the Playboy case is a flashy example of a rampant practice of using trademarks as metatags. Companies must be constantly and consistently vigilant to protect their trademarks and logos on the Internet. Dreitler has noticed an increase in businesses that monitor corporate trademark and logo use and abuse on the Internet.

Michael Kessler, president of Michael G. Kessler & Associates of New York City, is one such entrepreneur. His service is called Web Sweep. He has been offering the service for eight months.

Kessler lists some well-known companies as clients, but prefers to keep their names off the record. Those clients are extremely serious about tracking trademark and logo abuse. "If I take a reputable name and put it on a pornographic Web site, that's not conducive to the client's situation or goodwill," Kessler said.

In addition, a company could lose protection if it is not consistent in its application of copyrights and trademarks. Kessler's proprietary software allows him to perform refined searches of Web sites, news groups and user groups looking for mentions of clients' names.

Web Sweep includes metatags in its search, but it can't detect a logo if there is no text with it.

"Logos are extremely difficult," Kessler said.

Technology has been developed to embed logos with a code, but that code can be gotten around, he added.

Dreitler agreed that logos are hard to track down, but he said pirated logos are rarely used without related text. Nevertheless, he predicted that the technology will become sophisticated enough to search for non-text logos.

The attorney acknowledged that there are some efforts to make the Internet even more anonymous by not requiring names and addresses for domain name registration. He puts down proponents of such efforts as on the fringe.

"Those proposals are put on the table by wild-hair free-thinkers who don't like trademark owners," Dreitler said.

In the meantime, Dreitler said abusers should recognize that current trademark and copyright laws do apply to the Internet.

Just ask Hugh Hefner.