• by Wendy Davis  @wendyndavis, January 8, 2014

Hooters has sued Craigslist for allegedly allowing a Miami escort service to post ads for “Hooters girls.”

The restaurant chain argues that Craigslist, as well as Nikki's Escort Service, infringe Hooters' trademark with the ads, which allegedly appeared in November on Craigslist's classified listings for the Tampa area. The ads themselves allegedly said, “Now hiring Hooters' girls $100 hour,” and included a photo of Hooters employees in uniform.

Hooter's says in its lawsuit that Nikki's use of the Hooters name and uniform in ads “has caused and will cause irreparable injury” to the company.

The restaurant chain says it complained about the ads to Nikki's and Craigslist last month, following which the escort service allegedly replaced the word Hooters in the ad with the word “Kooters,” and also appeared to obscure some of the uniforms. But Hooters says the photo as revised “still clearly depicts the interior of Plaintiffs’ restaurant and its waitresses’ distinctive uniforms.”

Even if the allegations are true, it's debatable whether the employment ads infringe Hooter's trademark, according to Santa Clara University law professor Eric Goldman. He says that if a company wants to hire people who have previously worked for a competitor, the company doesn't necessarily infringe trademark by using that competitor's name in ads.

“If they're interested in hiring people who have that particular background, I don't know any other way to communicate that,” he says.

But, he says, even if Nikki's doesn't infringe Hooter's trademark by using its name in the ad copy, it's not clear that the escort service also can use a photo showing Hooter's uniforms.

Goldman adds that if the ad does infringe trademark, Craigslist potentially has an “innocent publisher” defense, which limits the liability of publishers who run problematic ads. That principle protects publishers from having to pay monetary damages for certain ads, but would still allow Hooters to obtain a court order banning Craigslist from allowing the ads in the future.

Craigslist shuttered its “adult services” listings several years ago, but still has ads from escort services who are seeking employees.