Dating Sites’ Battle Over ‘Shush’ Image Continues

(CN) - The company behind AshleyMadison.com may sue a competitor for using its distinctive image of a woman with her finger on her lips, a federal judge ruled.

Avid Dating Life operates the online dating website ashleymadison.com that caters to people looking for extramarital affairs. It also runs the website arrangementfinders.com, which claims to facilitate "MBA - Mutually Beneficial Arrangements," and offers "Intimacy with a Twi$t."

Infostream runs several competing dating websites, including seekingarrangement.com, which also arranges "mutually beneficially relationships," referring to members to as sugar daddies, sugar mommies, or sugar babies, and whatsyourprice.com, where men can pay to go on a first date with an attractive woman.

The parties reached a settlement agreement in a previous suit, under which Avid agreed to pay Infostream $60,000 to use the name "arrangement finders," and agreed not to challenge Infostream's "seeking arrangement" mark. But the parties returned to court this year, accusing each other of purchasing internet advertising related to searches for the other's dating site.

Avid also accused Infostream of violating the settlement by using its "famous" trade dress of a woman with her finger pressed against her sealed lips, which it refers to as the "shush image." Avid claims that a substantial segment of the consuming public associates this image with its website AshleyMadison.com.

U.S. District Judge Dean Pregerson dismissed the majority of both lawsuits with prejudice last week, but withheld judgment on who owns the rights to the shush image.

Infostream argued that it used the shush image first, and "attempts to bolster its argument by asking this court to take judicial notice of a more or less identical image pulled from an Infostream website in 2006," the judge said.

However, "the mere fact that an image was displayed on a website at a certain time cannot conclusively establish ownership of the trade dress one way or another. While the disputed fact of ownership may or may not be resolvable on summary judgment, it cannot be determined at this stage," Pregerson continued.

Both parties claimed that consumers searching for their websites came across advertisements off to the side of the actual search results for the other party's services, but they were clearly labeled as ads.

Under these circumstances, "Infostream cannot plausibly claim that Avid's mere use of keywords caused any consumer confusion," and vice versa, Pregerson said.

The judge also blocked Avid from suing Infostream's CEO Lead Wey for a statement he made following the parties' earlier settlement. Wey purportedly said his company was "successful in stopping [Ashley Madison] from using a website that was too similar to ours."

Pregerson ruled that Wey's comment was not defamation, even if it could have been more precise by referring to Ashley Madison's parent company.

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