both being on an app store and not being on an app store make confusion likely

Reflex Media, Inc. v. Luxy Ltd., 2021 WL 4134839, No. 2:20-cv-00423-RGK-KS (C.D. Cal. Jul. 13, 2021)

Eric Goldman has highlighted the toxic assumptions about sex workers and their clients that the court tosses off in its likely confusion analysis. Potential purchasers of sex are deemed “more sophisticated and less likely to be confused since they are successful individuals looking for relationships” (citation needed). But potential sellers of sex/people interested in the receiving payment side of an “arrangement” are deemed unsophisticated because, apparently, they are just looking to “hook up,” and the risks of sex work to their bodies, minds, freedom, and legal records would apparently not induce careful scrutiny of the forum. Paging Ann Bartow!

Plaintiffs run online dating websites, Seeking Arrangement.com and Seeking.com, along with a mobile application, Seeking, which is not on the Apple App Store. Luxy operates a competing online dating website, OnLuxy.com, and a mobile application, LuxyApp. Luxy allegedly used “Online Arrangement” and plaintiffs’ trademark “Seeking Millionaire” as metatags on its website, and other Seeking trademarks as search terms in the Apple Appstore and Google Play Store to yield LuxyApp as a search result. Luxy also allegedly infringed plaintiffs’ copyrights by copying their terms of use and privacy policy and by using plaintiffs’ trademark “SA” in the description of its privacy policies. [sigh]

In typical TM analysis fashion, the court concludes that heads, plaintiffs win, and tails, defendants lose: because Seeking isn’t on Apple’s app store, confusion is more likely when only Luxy’s app comes up in response to a search since consumers will expect Apple to have everything. [This seems like the rejected theory of liability in Amazon v. MTM, but clearly I am not in tune with current keyword jurisprudence.] On the other hand, because Seeking is on Google Play, confusion is also more likely there because of the similarity of marketing channels.

“This situation is different from the websites in Network Automation and Playboy, which were clearly distinguished with ad designations. The search results here do not have those same disclaimers.” [Again, no mention of MTM.] [The court also suggests that, because Seeking isn’t on Apple’s app store, consumers couldn’t compare the parties’ apps and thus it might not be possible for defendants to engage in truthful comparative advertising on the Apple app store, which seems like a pretty bad rule.]

The court doesn’t even dismiss the counterfeiting claim, despite finding the legal argument that keywords aren’t applied to the defendant’s goods persuasive; it wanted more briefing at the summary judgment stage.

Perhaps unsurprisingly, the court doesn’t even discuss the differences between false advertising and trademark, grouping it all into §1125(a).