In an ongoing battle between rival dating apps, Tinder is suing Bumble for patent infringement, trademark infringement and theft of trade secrets. In a complaint filed on March 16, 2018, Match Group, LLC – parent company of Tinder, Match, OkCupid and more – claims that Bumble is a Tinder clone, built using stolen technology. The case is currently pending in the United States District Court for the Western District of Texas. To put it simply: Tinder’s complaint is absurd. Let’s get right to it:
Tinder’s argument boils down to the following: (1) Several individuals who were employed by Tinder in its early stages left the company and launched the competing app Bumble. (2) Bumble looks suspiciously like Tinder and functions the same way. (3) Tinder owns swiping. Literally, Tinder has a federally trademark on the term “swipe.” (4) Bumble is violating Tinder’s patent on a dating app platform where users swipe. (5) Bumble is violating Tinder’s trademark on the terms “swipe”, “swipe left”, and “swipe right”. (6) Bumble’s design infringes on Tinder’s trade dress. (7) Bumble and its officers/owners built their app using stolen trade secrets in violation of the Defend Trade Secrets Act (“DTSA”).
Tinder’s Dating App Patent
I’m not a patent lawyer. But, I have been involved in some big patent litigation. So here are my two cents: The United States government – and specifically the USPTO – has inflicted massive and widespread harm to competition by granting companies absurd software patents on the most basic software concepts. I’ll give you a good example: A company called VideoShare actually had a patent on “streaming video online.” Ridiculous! It’s 2018. That’s such a basic, ubiquitous concept. But, VideoShare had a patent for it. Until last year, when a Delaware federal court declared that patent invalid under the Supreme Court’s Alice decision and the Federal Circuit affirmed. So that’s what we’re talking about here. Tinder has certain patents on generic dating app, swiping, match-making stuff. In my view, the ideas and systems are obvious, well-known and far from novel. My bottom line: Tinder’s patents are likely invalid under Alice.
The Trademark Claims
Tinder claims that Bumble is violating its trademark on “swipe”, “swipe left”, and “swipe right.” At first blush, I find it hard to believe that one could trademark the generic term “swipe.” I’ll defer to my colleague David Yaffe (our resident trademark expert) on that one. But Tinder’s claim is suspect for a number of reasons.
First, it appears that Tinder/Match never successfully registered any such trademarks. Tinder tried to register such trademarks. But according to Bumble, Tinder’s trademark applications for “swipe left” and “swipe right” were suspended by the USPTO. And some of Tinder’s applications were outright rejected. To be clear: Registration is not dispositive. In the United States, even unregistered trademarks are protected via common law and federal trademark law (i.e. the Lanham Act). So let’s analyze the merits.
As we all know, trademark claims ultimately come down to one thing: Consumer confusion. Tinder is down in the weeds talking about its supposedly protectable trademarks, but it completely misses the big picture. Nobody is getting confused. Tinder and Bumble are both dating apps. A user has to download the specific app and sign-up with the specific app. Here’s the thing: When a user downloads, signs up for or uses Tinder, it says TINDER. And it looks like this:
When a user downloads, signs up for or uses Bumble, it says BUMBLE and it looks like this:
Simply put: Nobody is confused! Show me one single person who is using Bumble and thinks it’s Tinder. Show me one single person who thinks they’re the same thing. Show me one single person who says, “I’m using Bumble because of my affinity for and loyalty to the Tinder/Match brand because I believe them to be affiliated since they are both dating apps with swipe features and the app interface looks strikingly similar.” Bullshit. Sheer applesauce. Utter nonsense. In your dreams Match/Tinder!
That’s the problem with so many trademark claims that are filed today: The plaintiff can file a 40+ page complaint filed with a bunch of mumbo jumbo about intellectual property, its brand, unique attributes of its product, etc. And if the reader is an idiot or – worse – a judge who has a particular ideological bent (e.g. a judicial activist who loves expanding trademark protection), then maybe that strategy works. But anyone who is not an idiot and not a judicial activist can easily see through the charade. There’s no similarity of appearance. There’s no protectable trademark in swiping. There’s no likelihood of confusion. And ultimately, there’s no viable trademark claim.
This same analysis applies to Tinder’s trade-dress claims. But those trade dress claims are even weaker because (1) the color scheme and overall look of the apps differs dramatically and (2) the app’s general set-up and swipe feature is functional — and you can’t have a protectable trade dress on a design that is functional. And just like that, we’ve gotten rid of the patent and trademark claims. That basically leaves the trade secret claim. And I know it might come as a shock, but that claim is equally bullshit.
The Trade Secret Claim
The crux of Tinder/Match’s trade secret claim: Several Tinder/Match employees left the company and eventually founded Bumble. While at Tinder/Match, they had access to confidential information and trade secrets. They stole those trade secrets and used them to create Bumble. This sounds shocking and scandalous, right? The problem is that once Tinder lays out these ultra-generic, boilerplate allegations, its trade secret claim falls apart. It’s got nothing. The BEST Tinder can do: (1) Tinder claims it had certain trade secrets related to its “undo” feature. This is the feature where a user swipes left (rejecting someone), but has the ability to undo that swipe, bring the other person’s profile back up, and then swipe right (accepting that person). (2) Tinder claims it had certain trade secrets in using a “Snapchat like” blurry picture messaging feature. Let me state the obvious: These things are not secret! There is nothing new or novel about wanting a backtrack or undo feature on a swipe-based dating app. And once you come up with that idea, you hire a developer to write the code for the app. It doesn’t matter who did it first. It isn’t groundbreaking. It’s obvious. As for the Snapchat like feature? That’s clearly not a Tinder/Match trade secret— because Snapchat already did it.
Summing it All Up
Tinder/Match filed a 45-page complaint. They probably paid their lawyers $200,000+ to put the case together. And in my opinion, it is unmitigated bullshit. It’s all smoke and mirrors. The patent claims (and the patents themselves) ultimately should fail under Alice. The trademark claims ultimately should fail because there is absolutely no likelihood of consumer confusion. And the trade secret claims ultimately should fail because there is no secret method, technology or formula at issue. The key word here is ultimately. Yes, Bumble has strong defenses and should win. But it will spend a year or more in litigation and $2 million+ in legal fees on its multi-front fight against Match/Tinder.
This case demonstrates a huge problem in the world of American law and business in 2018: Technological advances and access to information have leveled the playing field. Many things that once seemed novel or proprietary are now obvious, widely available and easy to replicate. But entrenched corporate interests don’t see things that way. A company that once had, e.g., a patent on video streaming and made money from licensing that patent fights tooth and nail to protect its legalized monopoly. It insists that the method/technology is novel, proprietary, and protectable. Maybe that was the case in 1992. But times have changed.
Cases like the Tinder/Bumble litigation are about two things: Money and ego. Companies like Tinder/Match think, “We created this brilliant, new concept and its worth money. Nobody could have done this if we didn’t do it first. And we have to fight to protect whatever value or investment we have in this.” That’s human nature, but it’s not sound logic. The reality is that if Tinder didn’t create the first swipe-based dating app, then somebody else would have. It’s obvious and functional. So that leaves us with money. In the end, this is all about greed and preventing ordinary competition.
If this case actually went this distance, Tinder/Match would lose in spectacular fashion. That would be justice. But that will never happen. Everybody will make a deal. Bumble will cut off its downside risk (on advice of its lawyers, who are probably ultra risk averse). And Tinder/Match will get to save face, then move on to bullying some other start-up.
The case is Match Group, LLC v. Bumble Trading, Case No. 6:18-CV-00080 (W.D. Tx. 2018).
Jonathan Pollard is a competition lawyer based in Fort Lauderdale, Florida. He has extensive experience litigating non-compete, trade secret, trademark and antitrust cases. He has appeared in the New York Times, Bloomberg, Inc. Magazine, FundFire, Law360, on PBS NewsHour and more. His office can be reached at 954-332-2380.