playboy case

this article discusses the current tardemark case brought by playboy entertainment against excite. the article also quotes mr. lemley.

   http://www.nytimes.com/library/tech/99/07/cyber/cyberlaw/23law.html

judge stotler opined that "although playboy had trademarks for 'playboy' and 'playmate', it did not have a monopoly on the use of the generic english words 'playboy' and 'playmate', which could, after all, refer to many things besides the bunny empire's products and services." agreed. they could.

but...

i just went to excite.com and performed a search using the word
'playboy'. the only ad banner that appeared was for 'climax', a porn
site. is the 'climax' ad banner shown because it relates to the
'generic' term 'playboy' or 'playmate'? no. it relates to the
trademarked words.

this portion of judge stotler's opinion would seem to carry more weight if, when performing a search using the word 'playmate', a children's friend-finding service or tonka truck ad banner appeared. or, when a search by the word 'playboy' is performed, a dating service or night club ad banner appeared. this would seem to employ use of the 'generic english words'. but, the display of porno ad banners when searching by
'playboy' or 'playmate' seems to link only to the playboy enterprise
trademarks, not the 'generic english words'.

judge stotler also said that "...playboy offered no evidence that consumers would be sufficiently confused over the relationship between playboy and a banner ad for a pornography site."

but, isn't trademark tarnishment also actionable? counsel for playboy claimed that '...this form of advertising [could] tarnish its reputation, because some of the ads were for more explicit pornography than playboy offers." might this contention (of playboy's) hold up upon appeal?

(just some layman's (often misguided) thoughts)

derric

Derric G. Oliver
<derric[_at_]mill.net> Received on Fri Jul 23 1999 - 18:59:23 GMT