Kelly v. Arriba Soft Corp.
336 F.3d 811 (9th Cir., 2003)

Summary

Plaintiff, a photographer, maintained two web pages that contained his copyrighted materials.  Plaintiff used the websites as a marketing promotion for his book and business ventures.  Defendant, Arriba Soft Corp., was a search engine provider. When a search was performed on the defendant’s search engine, it returned several images in the form of a thumbnail.  A user would then have the opportunity to click on the thumbnail image and see a full-size version of the image, information about the image, and an address to the creator’s website.  At the time of trial the defendant had thirty-five of plaintiff’s images in its database.  Plaintiff sued for copyright infringement and anti-circumvention provisions of the Digital Millennium Copyright Act.  The court held that the display of thumbnail images on the results page of a search engine was fair use and did not violated the Digital Millennium Copyright Act.  Additionally, the court noted that is was improper for the lower court to rule on whether the display of full-size images violates the copyright act, as the plaintiffs had not brought the issue before the court.

See the Court’s Opinion at: http://caselaw.lp.findlaw.com/data2/circs/9th/0055521opp.pdf

Playboy Enterprises v. Welles

78 F.Supp.2d 1066 (S.D. Cal., 1999)

Summary

Terry Welles, a former Playboy model, set up a Web site.  Through her website she sold various services and products. In the meta tags for her site, she included the terms, ''playboy'' and ''playmate.'' Playboy sued Welles claiming, among other things, trademark infringement. The court found in favor in Welles and rejected the Playboy’s motion for preliminary injunction. The court was persuaded by Welles' defense that the use was fair because it was a nominative. It concluded that Welles was using the meta tags in a descriptive way and was not trying to benefit from Playboy's good will. The two meta tags she used were part of her title as a Playboy Playmate. The court wrote that these meta tags gave Internet users a better idea about the content of her Web site.

See the Court’s Opinion at: http://caselaw.lp.findlaw.com/data2/circs/9th/0055009p.pdf

Eli Lilly & Co. v. Natural Answers Inc.

86 F.Supp.2d 834 (D. Ind., 2000)

Summary

The Seventh Circuit found the inclusion of PROZAC in the source codes (meta tags) was used to intentionally confuse consumers. The court held that actual confusion is not essential to a finding of a likelihood of confusion.

See the Court’s Opinion at:  http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=7th&navby=case&no=001375

Victoria’s Secret Stores v. Artco Equipment Co., Inc.

194 F. Supp. 2d 704 (S.D. Ohio, 2002)

Summary

Victoria’s Secret Stores sued Artco Equipment Co., Inc., a domain registrant of victoriassecret.net, claiming that Artco did not have the right to use its trademark.  Furthermore, Victoria’s Secret Stores alleged that Artco could not show nominative fair use, because the trademark was being used in its trademark sense to divert and confuse customers regarding Artco’s ''knock-off'' products, not to compare and contrast products and services between competitors. The court held that Artco’s bait and switch technique confused consumers and harmed Victoria’s Secret Stores trademark.

See the Court’s Opinion available on LexisNexis or Westlaw.