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PLAYBOY ENTERPRISES v. CHUCKLEBERRY PUBL.

July 12, 1996

PLAYBOY ENTERPRISES, INC., Plaintiff, against CHUCKLEBERRY PUBLISHING, INC., TATTILO EDITRICE, S.p.A., PUBLISHERS DISTRIBUTING CORPORATION, and ARCATA PUBLICATIONS GROUP, INC., Defendants.


The opinion of the court was delivered by: SCHEINDLIN

OPINION AND ORDER

 SHIRA A. SCHEINDLIN, U.S.D.J.:

 I. Background

 Plaintiff, Playboy Enterprises, Inc. ("PEI"), publishes the well-known male entertainment magazine "Playboy." Defendant, Tattilo Editrice, S.p.A. ("Tattilo"), has published a male sophisticate magazine in Italy under the name "PLAYMEN" since 1967. In 1979, after Tattilo announced plans to publish an English language version of PLAYMEN in the United States, PEI brought suit to enjoin Tattilo's use of the PLAYMEN name in connection with a male sophisticate magazine and related products. As a result, PEI was awarded an injunction ("Injunction") permanently enjoining Tattilo from:

 
 
a. using the word "PLAYMEN" or any word confusingly similar therewith as or in the title, as or in the subtitle, or anywhere else on the cover of a male sophisticate magazine, published, distributed or sold in the United States;
 
b. publishing, printing, distributing or selling in the United States and importing into or exporting from the United States an English language male sophisticate magazine which uses the word "PLAYMEN" or any word confusingly similar therewith as or in the title, as or in the subtitle, or anywhere else on the cover of such magazine; and
 
c. using "PLAYBOY", "PLAYMEN" or any other word confusingly similar with either such word in or as part of any trademark, service mark, brand name, trade name or other business or commercial designation, in connection with the sale, offering for sale or distributing in the United States, importing into or exporting from the United States, English language publications and related products.

 Declaration of David R. Francescani, Attorney for Playboy, dated February 27, 1996 ("Francescani Decl.") Ex. 1.

 Fifteen years later, in January 1996, PEI discovered that Tattilo had created an Internet site featuring the PLAYMEN name (the "PLAYMEN Internet site" or "Internet site") which makes available images of the cover of the Italian magazine, as well as its "Women of the Month" feature and several other sexually explicit photographic images. The Internet site was created by uploading images onto a World Wide Web server located in Italy.

 Tattilo offers two services on its Internet site. "PLAYMEN Lite" is available without a subscription and allows users of the Internet to view moderately explicit images. "PLAYMEN Pro," which offers more explicit images, is available only upon the purchase of a paid subscription. It appears that the main (if not sole) purpose of the PLAYMEN Lite site is to allow prospective subscribers to PLAYMEN Pro to sample the product before purchasing a subscription.

 PEI moved for a finding of contempt against Tattilo. By Opinion and Order dated June 19, 1996 ("Opinion"), I determined that the Internet site violated the Injunction, and thereby found Tattilo in contempt. Tattilo was ordered, within two weeks, to: (1) either shut down its Internet site completely or refrain from accepting any new subscriptions from customers residing in the United States; (2) invalidate the user names and passwords to the Internet site previously purchased by United States customers; (3) refund to its United States customers the remaining unused portions of their subscriptions; (4) remit to PEI all gross profits earned from subscriptions to its PLAYMEN Pro Internet service by customers in the United States; (5) remit to PEI all gross profits earned from the sale of goods and services advertised on its PLAYMEN Internet service to customers in the United States; (6) revise its Internet site to indicate that all subscription requests from potential United States customers will be denied; and (7) remit to PEI its costs and attorneys' fees incurred in making that application. I further ruled that if those conditions were not met within two weeks, Tattilo shall pay to PEI a fine of $ 1,000 per day until it complies fully.

 Defendant now requests that the Court amend its Order in several respects. First, Defendant submits that the Court misconstrued the process by which a user of the Internet site accesses PLAYMEN Lite, resulting in the incorrect determination that the PLAYMEN Lite service violated the Injunction. Defendant argues that the continued availability of PLAYMEN Lite within the United States would not violate the Injunction. Second, Defendant requests that the Order be amended to eliminate the award of attorneys' fees and costs to PEI, as well as Tattilo's gross profits from subscriptions and sales of products to customers residing in the United States. *fn1"


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