By Palak V. Patel
palak@jayaramlaw.com
In this day and age, online dating has become the most popular way of meeting a significant other. Tinder, Bumble, Coffee Meets Bagel, Hinge, etc. all have revolutionized the way people meet each other. The concept is simple: (1) users make a profile with a few pictures and a short description; (2) they can view the profiles of others and either swipe right if they are interested in connecting or swipe left if they aren’t; and (3) if the other user swipes right on your profile then you have an opportunity to chat on the app. Recently Tinder has taken issue with the fact its competitors use the same “swipe” phrase and technology.
Earlier this year, Tinder filed a lawsuit against Bumble alleging that it infringed upon Tinder’s patents and registered trademark. Match Group, LLC, the parent company of Tinder, does own the registered trademark to “swipe” and has pending registrations for both “swipe left” and “swipe right” in the category of “computer application software for mobile devices, namely, software for social introduction and dating services.” Tinder is now alleging that Bumble’s use of “swipe” is causing a likelihood of confusion and is deceptive to members of the public.
In order to even register a mark, it has to be sufficiently distinctive. Tinder’s mark has been criticized for lacking distinctiveness and being descriptive. These days, all types of apps have swipe features to switch screens, flip through photos, etc. Thus, this leads to the question, how was Tinder even able to register “swipe” as a mark?
Tinder never registered the mark on its own. Tinder acquired the mark from a company called SpeedDate.com LLC. SpeedDate.Com created a dating app named “Swipe.” When registering the mark, they stated that the use of the mark was to identify the source of the dating app. Tinder acquired the mark in 2015. To date, they have not had to prove their “use” of the mark. Tinder simply uses the mark “swipe” as a way to describe the gesture of swiping across the screen. Their use of the mark is likely to be considered descriptive. Bumble also uses the term “swipe” as a verb to describe the action of moving your finger across the screen. This is a generic description rather than the use of a mark in commerce. Thus, it is unlikely that Bumble’s use will be considered infringing.
Bumble claims that this is Tinder’s attempt to bully Bumble. Interestingly enough, this claim was filed while Bumble was negotiating the potential sale of Bumble to Match.com. We’ll have to stay tuned to see how this case resolves itself.