SW Legal Educational Publishing

Infringement on the Internet
Description Frena operated a bulletin board on which subscribers could upload and download copies of photos from Playboy magazine. MAPHIA posted unauthorized Sega games. In both cases, the courts grantd summary judgments against the web site operators.
Topic Cyberlaw
Key Words Lanham Act, Trademark Infringement
Summary of
Two Cases
In Playboy Enterprises v. Frena (839 F.Supp. 1552), Frena operated a bulletin board (BB) on which subscribers could upload and download copies of photos from Playboy magazine. There was no text from the magazine, only the photos, which had the BB name and phone number attached. The trademarks "Playboy" and "Playmate" were used numerous times. Frena claimed that his subscribers were responsible for placing the photos on the BB and that he was not aware that the practice was an infringement. The court was unimpressed by Frena's claims. Trademark infringement does not have to be done in bad faith. The court granted Playboy summary judgment in its favor on the claim of trademark infringement and for unfair competition. Frena, by placing his name on the photos, made it appear that they were his and gave no attribution to the source. To remove the Playboy mark and insert his own name on the photos was reverse passing off.

In Sega Enterprises v. MAPHIA (857 F.Supp. 679), the MAPHIA BB posted unauthorized Sega games that appeared with the name Sega. Many of the games had problems in them because they were bootlegged from pre-release copies or were altered somewhat in loading them to the BB. The court granted Sega summary judgment, holding that consumers could confuse the games with the genuine Sega games and there was trademark infringement. The court also held there was likely to be unfair competition in violation of the Lanham Act since the public could be confused by the presence of the Sega name on the bootleg programs.

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