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Designer Skin LLC v. S & L Vitamins, Inc., et al.
Unauthorized internet reseller of plaintiff’s products is not guilty of trademark infringement, and does not cause actionable initial interest confusion, by using plaintiff’s trademarks in meta tags of website at which plaintiff’s and its competitors’ products are sold, and in...

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Playboy Enterprises, Inc. v. Frena

839 F.Supp. 1552 (M.D. Fla. 1993)

In this case, Playboy charged the defendants, operators of a bulletin board system, with copyright and trademark infringement, as well as unfair competition. Defendants' bulletin board system is accessible via telephone modem to subscribers. Subscribers uploaded onto the bulletin board various pictures published by Playboy to which Playboy owned the applicable copyright. In addition, these subscribers, in the description of the material they provided other bulletin board users, utilized Playboy's trademarks Playboy and Playmate. Lastly, in some instances, Playboy's trademark was removed from the photograph, and replaced with the name of the bulletin board service and its telephone number.

On these facts, the court granted plaintiff's motion for partial summary judgment, finding defendants guilty of copyright and trademark infringement, as well as unfair competition. The court reached such conclusion notwithstanding defendant Frena's claim both that he did not upload the images onto his bulletin board system (subscribers did) and he was unaware of the presence of such images on his service until such time as he was served with the summons and complaint in this action, at which time he caused them to be deleted.

Said the court:

 It does not matter that Defendant Frena may have been unaware of the copyright infringement. Intent to infringe is not needed to find copyright infringement. Intent or knowledge is not an element of infringement, and thus even an innocent infringer is liable for infringement; rather innocence is significant to a trial court when it fixes statutory damages, which is a remedy equitable in nature." (citation omitted).

The court also held that the display of Playboy's images by Frena to bulletin board subscribers was a public display, and that the projection of such images on the bulletin board system was a display for copyright purposes.

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