Dating app company Tinder is showing no love to rival Bumble, and has filed a lawsuit alleging that Bumble is infringing it’s patent, it’s trademarks, and stealing trade secrets. That’s a whole lotta suing, and today I’ll talk about the trademark infringement issue. If you want to hear about the other issues, just message me and I’ll cover the other aspects of this lover’s quarrel.
Tinder, Inc, the owner of the mark, came to own the mark (Registration number 4465926) after the mark was transferred to Tinder on February 27th, 2015 by a company called SpeedDate.com LLC. A perusal of the record gives no hint as to why the mark was transferred, but given Tinder, Inc.’s aggressive stance, I suspect some bullying behavior on Tinder’s part was involved in the transaction. Big companies often acquire trademark rights by less-than-ethical means when confronted by smaller trademark holders who can’t afford to defend against this sort of predatory behavior. But I digress…
In it’s 45-page complaint, Match.com, the parent company of Tinder, alleges that Bumble’s use of the word “swipe” in it’s dating app “will continue to cause a likelihood of confusion” in members of the general public. I see a couple of issues here, both worth noting.
Issue one is the allegation of “use.” Tinder acquired its trademark from another company, SpeedDate LLC, and never had to prove “use” during the trademark registration proceedings. This means that their claims of “use” of the trademark have never been scrutinized by the Patent and Trademark Office. The original registration was for a dating app named “Swipe.” The use of the mark SWIPE to identify the source of the dating app is bona-fide trademark use for a dating app.
Having been a recent user of the Tinder app, I can’t say that I recall ever seeing the mark SWIPE used in conjunction with the goods claimed in the trademark registration. While Tinder does indeed use the word “swipe” to describe the gesture of swiping one’s finger across the screen, this claimed “use” is not “use” of the mark in commerce as the Lanham Act requires. A look at the Tinder website reveals that they are using the word “swipe” as a verb, and trademarks are adjectives, and not verbs, nouns, or any other part of speech. They are not using the word “swipe” as a source identifier, as the original applicant did. The original application was for an application named Swipe, or a “Swipe (adjective) application.” Tinder is using the word as a verb: “Swipe right to like someone or swipe left to pass.” This is not use of the mark as a trademark. Their trademark infringement claims against Bumble should fail for this reason alone.
An examination of Bumble’s use likewise negates the claim that Bumble is using the term “swipe” as a trademark. Bumble’s website uses the term “swipe” to describe the gesture one makes to approve or dismiss a potential suitor, and use of the trademark as a verb is not trademark “use.” Merely uttering the word “swipe” or using the word “swipe” — which is a generic description of a gesture commonly used on mobile devices — is not “use of a mark in commerce” which is what the Lanham Act protects. Needless to say, I disagree that Tinder has any claim to the term “swipe,” it’s ownership of a registered trademark notwithstanding. We’ll have to wait and see how the court rules on that issue.
To further complicate matters, it appears that Tinder’s parent company Match.com and Bumble were negotiating the sale of Bumble to Match.com, and that Match.com may have used confidential information acquired during these negotiations to bolster their claims of patent infringement, trademark infringement, and theft of trade secrets. For its part, Bumble alleges that the Match.com lawsuit was filed to lower the valuation of the company so that Match.com could scoop it up at a bargain price. I’m guessing that talks about acquisition are currently off the table. Bumble has counter-sued Match.com for $400 million in damages, as well as injunctive relief that would prevent Match.com from using information gleaned in the acquisition negotiations in their infringement lawsuit.
I’ll be interested to see the outcome of this case, which could take months or years to grind its way through Federal court. I’ll issue an update when the case is decided.
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