Swipers & Swingers: Intellectual Property of Online Dating

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We are two very fortunate fellas. We’ve both been married to our fabulous wives since the ‘70s, way before Senator Al Gore created the internet (he didn’t, really). Our dating lives and marriages also precede the advent of online dating services like Match.com (launched in 1995) and took place before online dating apps were on the smartphone in your pocket. We’re so old and happily married that we don’t even know what the words “Ashley Madison” mean. Although neither of us has been a “player” in the online dating scene, that doesn’t mean we can’t write about it.

While online dating hasn’t touched everyone, it’s getting there. According to DatingAdvice.com (this seemed like a better resource for this topic than Wikipedia), almost 50 million people have tried online dating, 17% of the couples who married in 2017 met via an online dating site and the online dating industry’s annual revenue is about 1.8 billion dollars. However, not all the news is rosy about online dating. Another source we consulted – Phactual.com – reports that over half of online users lie on their dating profile and over ten percent of the people using online dating services are already married.

While we don’t know swipe left from swipe right, we do know about intellectual property. Those involved in creating and running online dating app businesses own intellectual property. In fact, intellectual property is very important to them, just as it is to every business (and to every one of your clients).

TRADEMARKS

Let’s start with the obvious – online dating brands. An online dating app is only successful if it has a lot of eyes on it, so having a distinctive, memorable and clever brand is crucial. Here are several examples of online dating app brands – some you’ll know and some you probably won’t: Tinder, Jdate, Coffee Meets Bagel, Hinge, Match. com, Bumble, Her, eHarmony, BeNaughty, Christian Mingle, Plenty of Fish (POF), Grindr, and Zoosk.

From a trademark strength perspective, these marks are pretty good, ranging from fanciful (Zoosk) to arbitrary (Hinge and Tinder) to suggestive (BeNaughty and Match.com). The more distinctive the mark, the easier it is to protect and police. Of course, sometimes using a descriptive mark does work best, such as when you’re targeting a very specific audience. For example, these two dating service brands tell you right away what you might be in for when seeking a companion: (1) StarTrekDating.com (with the tag line, “Set Phasers To Stunning”) and (2) Clown Dating (with the tagline, “Everybody loves a clown…let a clown love you”).

Podium

COPYRIGHTS

An online dating profile is nothing unless a user fills it with content such as photos and personal information. Copyright protects such originally created content, but what happens to the content once you allow the profile to go public? It depends on the “Terms of Service” of the app being used. For example, Tinder’s Terms of Service states: “By creating an account, you grant Tinder a worldwide, transferable, sub-licensable, royalty-free, right and license to store, use, copy, display, reproduce, adapt, edit, publish, modify and distribute information… you post, upload or display or otherwise make available….” In other words, you pretty much give up any control of your copyright rights in your posted content, at least as to what Tinder might want to do with it.

TRADE SECRETS

Online dating services are all about sharing information right, so where does trade secret protection enter the equation? Well, trade secret protection is certainly not available for the actual content being shared (it’s just “Out There!” as your grandfather might say), but like every business, trade secret protection is very valuable for online dating businesses. Typical confidential business information is covered, of course, such as financials, salaries, product development and marketing plans, etc., but perhaps most valuable is simply the online dating app’s account/user/ player list and associated contact information and demographics. Many businesses are acquired simply to acquire its customer list, and we expect that an online dating service would be no different in that regard.

PATENTS

According to the U.S. Supreme Court (Alice v. CLB Bank, 2014), an abstract idea is not eligible for U.S. patent protection simply because it is implemented on a computer. The matching of people based on mutually- expressed common interests (and computer-driven methods of doing so) seem like “abstract ideas” to us, but remarkably the U.S. Patent Office is still issuing patents of this type (see Match Group’s 2019 U.S. Pat. 10,203,854) and patent litigation between online dating services continues (see Match Group vs. Bumble Trading).

Alert Communications

As with many emerging industries, there are corporate consolidations. Sparks Networks now owns Jdate, Christian Mingle and other online dating services. Match Group owns Tinder, Hinge, Match.com and others, and some suggest that Match Group’s patent infringement action against Bumble Trading is just part of Match Group’s bigger plan to drive an acquisition of Bumble by Tinder. MaturePatentOwnerSeeksStartUpInfringer.com Peter Sawicki  James L. Young 

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