All’s Fair in Love and Litigation: The Intellectual Property War of Bumble and TinderApril 11, 2018

Last month Match Group, which owns Tinder (as well as OkCupid, and Plenty of Fish) filed suit against Bumble alleging patent infringement, trademark infringement, and misappropriation of trade secrets. See Match Group, LLC, Plaintiff, v. Bumble Trading Inc., Defendant, 2018 WL 1371453 (W.D.Tex.). Match Group argues that Whitney Wolfe-Herd, a co-founder of Tinder, left Tinder and created Bumble, a “Tinder Copycat.”

According to Match Group, Bumble directly infringes Match’s 9,733,811 patent (the ‘811 patent) directed to a method and system of profile matching, as well as a non-transitory computer-readable medium for effectuating the same. Match Group also argues that Bumble infringes Match’s design patent, D798,314 (the ‘314 patent). The ‘314 patent is directed to an ornamental design where photographic cards are swiped left or right—i.e. the “swipe left” or “swipe right” function that both apps use.

The complaint doesn’t stop with patent infringement: Match further alleges Bumble infringed Match’s trademark for the mark “swipe” in connection with computer application software for mobile devices, and Match’s trade dress for the “iconic” user interface in the Tinder app. Match argues Bumble’s use of their Trademark and Trade dress resulted in dilution of a “household name” and “cultural phenomenon” owned by Tinder.

Finally, Match Group accuses Bumble of misappropriating their trade secrets, specifically the concept of the “undo” function, which Match Group alleges was being developed in part by Whitney Wolfe-Herd and several other Tinder employees who subsequently left to form Bumble. The complaint asserts that the “undo” concept of Tinder is identical to Bumble’s “backtrack” feature. 

Bumble responded about two weeks later with a countersuit of its own, alleging tortious interference, fraud, and a violation of Texas trade secrets law, among other things. See Bumble Trading Inc., and Bumble Holding, Ltd., Plaintiff, v. Match group, LLC., Defendant., 2018 WL 1570349 (Tex. Dist.). The crux of the countersuit argues that Match Group repeatedly attempted to acquire Bumble and in the prospect of a sale Bumble disclosed sensitive financial information about the company; however, Match Group made offers that (in Bumble’s opinion) were unfairly low. Match Group rejected the offers and instead of continuing negotiations, Match Group announced that Tinder would be introducing a women-make-the-first-move feature. Anyone familiar with the Bumble app knows that the women-make-the-first-move feature is a hallmark trait of Bumble. Bumble argues in its countersuit that Match Group requested proprietary information without disclosing that it was already planning to sue Bumble. Further, Bumble alleges that in order to counteract the resulting adverse publicity of its “scare tactics,” Match falsely and fraudulently assured the public its intentions in suing Bumble were honorable.  Bumble in turn decided to release an open letter to the public asserting it was not intimidated by Match.

The lawsuit is further complicated by the fact that Whitney Wolfe-Herd, the founder of Bumble, also co-founded Tinder and was one of its first employees as its vice president of marketing. In the early days of Tinder’s development, Ms. Wolfe-Herd was also in a relationship with Justin Mateen, Tinder’s chief marketing officer. The relationship did not end well, to the point where Ms. Wolfe-Herd brought her concerns about Mateen’s behavior to the CEO at the time, Sean Rad. However, Mr. Rad allegedly dismissed her concerns and ultimately fired Ms. Wolfe-Herd. In response, Wolfe-Herd filed a sexual harassment lawsuit in 2014. Although Rad and Mateen have since left Tinder, it is from these circumstances that Bumble was born.

From a legal perspective, it will be interesting to see how the courts handle the business method claims of the ‘811 patent, as methods of conducting ordinary business procedures are generally held to be non-patentable subject matter. See Alice Corp. v. CLS Bank, 134 S. Ct. 2347 (2014). Furthermore, Match’s claims of trademark, trade dress and design patent infringement should prove intriguing in light of the recent litigation battle between Apple and Samsung. This well-publicized litigation covers similar issues such as the (registered and unregistered) trade dress and design patents connected to Apple’s rectangular phone and icon display. See Samsung Electronics Co., Ltd. v. Apple Inc., 137 S. Ct. 429 (2016) (the case is entering its eighth year of litigation and fourth jury trial scheduled for May 14, 2018). Given the intertwining of Bumble and Match not present in Apple v. Samsung, and given the number of issues presented by the initial complaints, the battle between Bumble and Match promises to be a tech war of substantial magnitude.

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