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Tinder and reverse confusion

Print publication

18/11/2015

Tinder, the online dating app, is a very big business. The app allows users to “swipe right” if they like a person’s profile and to “swipe left” if they don’t. If users swipe right in respect of one another’s profile then they are matched and, hopefully, romance is born.  It may not be courtship as Jane Austen understood it, but at around one and a half billion “swipes” worldwide per day, her early twenty-first century counterparts are loving it.

It is therefore a bold step for a California based web design company called WidFireWeb to have launched trade mark infringement proceedings against the owner of the app, IAC Interactive Group. WildFireWeb runs a service called Tinder which enables users to edit content directly onto a web page. It was granted a trade mark for the word mark TINDER in 2011. IAC, by contrast, was not granted its trade mark for the sign TINDER until 2014.

WildFireWeb is suing IAC for using an “identical name” and “confusingly similar” design. It claims that the dating app could harm its ability to market its own software. The two signs are visually similar. Each uses orange lettering and both names have a flame above the letter “i” – although, given that the word in question is “tinder” this is less of a coincidence than it might be in other circumstances.

There is a problem, however. Trade mark litigation is not cheap and IAC is likely to have considerably deeper pockets than WildFireWeb. WildFireWeb has therefore launched a crowdfunding campaign to help raise the funds to fight the litigation but even given the current boom in crowdfundings on both sides of the Atlantic (as colleagues in the Walker Morris Corporate Group have previously described) WildFireWeb have a big task ahead of them although, given the value of the TINDER mark to IAC, it is possible they may be tempted to settle to keep the mark.

This case is an example of “reverse confusion” – where a trade mark with prior rights is confused with the rights of newer company with the same or similar name. This happens where the newer company becomes so well known that that consumers associate the goods or services of the first company with the newer, more well known company. This can adversely impact the first company’s ability to control its brand.

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