SAN FRANCISCO – In a complaint filed with the U.S. District Court for the Northern District of California last week, the operators of several online dating sites allege that a competitor has infringed on their trademarks and engaged in unfair competition.

While the outcome of the case is far from certain, some of the issues raised in it are worthy of consideration, regardless of who prevails. Among other things, some of the allegations in the complaint involve common practices, some of which many site operators may not even realize are fraught with potential civil liability.

In their complaint, Reflex Media (RMI) and Clover8 Investments, the operators of SeekingArrangement.com and several other dating sites, allege that SuccessfulMatch.com and a list of both named and John Doe defendants have adopted and used “counterfeit marks identical to RMI’s Trademarks… in United States commerce.”

While some of the allegations involve acts that are commonly found in trademark infringement complaints and other intellectual property litigation – things like using modified images originally published on the plaintiffs’ sites, for example – it also calls out acts which are not so visibly obvious at a glance.

For example, in their complaint the plaintiffs allege that the defendants “use one or more Infringing Marks within metadata keywords on their website, <www.SugarDaddyMeet.com>, social media webpages, and on other Internet advertisements to promote their competing business.”

Attached to the complaint is an exhibit which displays the source code of a page on SugarDaddyMeet.com, demonstrating that among the terms in the site’s keyword meta tag is “Seeking Arrangement” – the name of RMI’s flagship dating site and one of the company’s registered trademarks.

The complaint also cites the defendants’ use of social media hashtags that include the company’s “seeking” trademark, noting that the defendants’ first use of those hashtags came several months after the plaintiffs began using them.

“RMI’s official Instagram account for Seeking.com used the hashtags containing the SEEKING trademark (#seeking #seekingarrangement #whatareyouseeking #seekingluxury #seekingonmyterms #seekingnotswiping, in that order,) on January 9, 2020… and followed that post with many posts using those hashtags,” the complaint states. “On June 8, 2020, the Successful Match Defendants began to use the hashtags #seeking, #whatareyouseeking, #seekingluxury, and #seekingnotswiping, in that order, on a post on its official Instagram page for SugarDaddyMeet.com… Additionally, the SugarDaddyMeet official Instagram account also contains ‘Mutually Beneficial Relationships’ on its frontpage and other posts have used the SEEKING MILLIONAIRE trademark.”

The complaint further notes that in a related case filed in a different court, the court dismissed the defendants from the case after finding that it lacked jurisdiction over them – and in the interim between the cases, the defendants made changes to some of the sites at issue in the case.

“Following this dismissal, these Defendants edited their SugarDaddyMeet.com homepage to remove the term ‘mutually beneficial relationship’ and replaced it with the term ‘Seeking Secret Mutual Benefits,’” the plaintiffs allege in their complaint. “Defendants still use the term ‘mutually beneficial relationships’ on other pages on the SugarDaddyMeeet.com website as well as on their other websites.

RMI also asserts that the defendants use of the phrase “Seeking Secret Mutual Benefits” represents “a strategic combination of registered trademarks of Defendants’ competitors, namely, RMI’s SEEKING ARRANGEMENT and MUTUALLY BENEFICIAL RELATIONSHIPS marks, and OBOLEO LTD’s SECRET BENEFITS mark.”

RMI alleges that the defendants’ actions “indicate that Defendants’ conduct is willful and intentional.”

“Defendants knowingly combined these marks after they became aware that RMI was seeking redress for Defendants’ violation of RMI’s MUTUALLY BENEFICIAL RELATIONSHIPS mark… Nevertheless, Defendants continue to use RMI’s MUTUALLY BENEFICIAL RELATIONSHIP mark on other pages of the SugarDaddyMeet.com site as well as on their other and affiliate websites.”

While it’s not nearly as widely discussed as some more obvious intellectual property rights infringements, like copyright infringement claims stemming from content theft, use of trademarked terms in metatags can constitute an infringement on those marks.

Courts in the Ninth Circuit (Brookfield Communications, Inc. v. West Coast Entertainment Corp), Eleventh Circuit (North American Medical Corporation v. Axiom Worldwide, Inc) and Seventh Circuit (Promatek Industries Ltd v. Equitrac Corporation) determined that infringing use of metatags can cause marketplace confusion, in some instances analogizing it to false advertising in the brick and mortar world. In Brookfield, for example, the court wrote that “using another’s trademark in one’s metatags is much like posting a sign with another’s trademark in front of one’s store.”

It’s not quite as simple as “all use of third-party trademarked terms in metatags is prohibited,” of course – and the merits of any given case will rise or fall on the specific factual circumstances at hand. Even a complaint that ultimately fails in court costs money (and time) to defend though, so the decision to include metatags that may be infringing – or to use trademarked terms in social media hashtags – is not one any website operator should take lightly.

Hashtag in sand photo by Pixabay from Pexels