The entrance to the Facebook campus, located in Menlo Park, California. Photo: Jason Doiy/ALM

A Philadelphia tattoo artist who gained attention for losing more than 100 pounds wants Facebook to stop letting scammers use her image in ads that appear on the social media behemoth, but the company wants the suit to be moved to federal court in California.

On Oct. 5, Facebook asked the U.S. District Court for the Eastern District of Pennsylvania to transfer the case Oreto v. Facebook more than 2,700 miles to the U.S. District Court for the Northern District of California.

The filing, which was in response to plaintiff Kristel Oreto’s latest efforts to rebuff the transfer request Facebook first made last month, focused on arguments that the company’s terms of use designating California federal court as the venue for any disputes had been clear and reasonable, and terms that Oreto clearly agreed to.

“Because Facebook’s terms were visible and hyperlinked in blue, and assented to by clicking the sign up button, plaintiff has failed to show that the Facebook terms were inconspicuous and thus unenforceable,” Michele Hangley of Hangley Aronchick Segal Pudlin & Schiller said in the filing.

Oreto’s suit stems from allegations that the company failed to investigate and stop diet supplement advertisers from using her weight loss photos in advertisements that she contends are scams. The failures, she argued, violated the Lanham Act, and damaged her reputation. Along with seeking an injunction, she has also asked for punitive damages.

According to her complaint, Oreto is a famous tattoo artist, who became “an inspiration to many struggling with weight gain,” after she lost about 120 pounds through exercise and better eating habits.

Beginning in 2017, photos of her weight loss progress began to appear in ads posted on the site, some of which included statements endorsing the products that were attributed to her, she said in the complaint. She contended that she notified the company several times, but the company delayed in taking the ads down, and failed to stop the advertisers from using her image.

She filed her suit in Pennsylvania federal court, contending that the forum selection agreement was “unreasonable and unjust” because it had been buried in the terms of use and could only be accessed after filling out multiple pages and following a hyperlink to the agreement. The complaint also noted the agreement contained 37 screen-lengths on the mobile device that she had signed up on.

In its response filed Sept. 7, Facebook contended that the suit must be transferred to California. The company’s response disputed how complicated accessing the terms of use allegedly is, and contended that Oreto never said she hadn’t read the terms of use.

Oreto responded late last month, saying there were several similarities between accessing Facebook’s terms of use and accessing Uber’s terms, which the U.S. Court of Appeals for the First Circuit said in its June ruling in Cullinane v. Uber Technologies had been inadequate.

In its filing from Oct. 7, Facebook contended that Oreto ignored several significant differences between accessing its terms and Uber’s.

“Indeed, the First Circuit in Cullinane cited to the presentation of Facebook’s terms via a hyperlink in conjunction with a sign up button as being consistent with the industry standard,” Facebook said in the filing.

Facebook, Hangley and West Chester attorney Robert Axenfeld, who is representing Oreto, each did not return a request for comment Monday morning.

Read the complaint and see images of the ads below: