Jilted dating app company Tinder is playing hardball with rival Bumble, which it tried unsuccessfully to earlier acquire, and has filed a lawsuit alleging that Bumble is infringing its patent, its trademarks, and stealing trade secrets. Hey, if you can’t woo ‘em, sue ‘em, right? Bumble in its countersuit alleges that Tinder used protected information acquired during the acquisition “pillow talks” as ammunition in its lawsuit. Previously, I discussed the trademark infringement issue. Today, I want to cover the “trade dress” issue in this lover’s spat.
“Trade dress” refers to the the characteristic visual appearance of a product or product packaging that identify the source of the product in the eyes of the consumer. It’s a form of intellectual property, just like a patent a copyright, or a trademark is. An infringer violates the trade dress of another when they adopt the “look and feel” of another company in a manner that is likely to cause confusion in the mind of the consumer. If an aspect of the trade dress is functional, that part is not protected by trade dress; if you want to protect something functional, then you need to apply for a patent. Only designs, shapes, or other creative aspects of the product or its packaging that are created to promote and distinguish the product or service are capable of protection under trade dress. Trade dress is protected both by registered and unregistered marks under the Lanham Act; just as you don’t need to register your trademark (if you’d rather fight about it later than protect your rights with a registration, that’s up to you!) owners of trade dress rights have them irrespective of registration with the Trademark Office.
Match.com, the parent company of plaintiff Tinder, owns design patent D798,314 for a “display screen or portion thereof with a graphical user interface of a mobile device,” filed in April 2016. As of this post, it’s not yet been issued, which is pretty common for tech patents, because there is such a backlog in that examining group. The protected design looks like a mobile app interface with a header and cards below, upon which a user may perform the now-infamous “swiping.”
Do they look alike? Well, judge for yourself. I don’t see a strong resemblance that isn’t “functional” — remember with the mobile interface, the small format gives you only so many ways to display the information. I think it looks different, and I wouldn’t be confused about the two apps. We’ll have to wait and see what the court thinks.
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Trademark Wars: Tinder vs Bumble, Part 2 Trade Dress Infringement posted first on https://trademarkdoctor.wordpress.com
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