AshleyMadison.com May Sue Competitor, Judge Says

Rhett Pardon

LOS ANGELES — AshleyMadison.com may sue a competitor for using its distinctive mark of a woman with her finger on her lips, a federal judge has decided.

The dating website for extramarital affairs, operated by Avid Dating Life, is suing Infostream, which runs several competing dating websites, including SeekingArrangement.com and WhatsYourPrice.com.

Both parties reached an accord 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 fedreal court again, with both accusing each other of purchasing web advertising related to searches for the other's dating site.

AshleyMadison.com also accused Infostream of violating the legal 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."

AshleyMadison.com  says the consuming public associates this image with its website.

U.S. District Judge Dean Pregerson, the federal jurist in Vivid Entertainment's lawsuit over Measure B in Los Angeles, dismissed the majority of both claims with prejudice this month, but withheld judgment on who owns the rights to the shush image.

Infostream said that it used the 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."

But "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," Pregerson ruled. "While the disputed fact of ownership may or may not be resolvable on summary judgment, it cannot be determined at this stage."

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