Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`
`ESTTA Tracking number:
`
`ESTTA911037
`
`Filing date:
`
`07/23/2018
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Proceeding
`
`Applicant
`
`86363993
`
`Smooch Labs Inc.
`
`Applied for Mark
`
`JSWIPE
`
`Correspondence
`Address
`
`Submission
`
`Attachments
`
`Filer's Name
`
`Filer's email
`
`Signature
`
`Date
`
`JOHN STRAND
`WOLF GREENFIELD & SACKS PC
`600 ATLANTIC AVENUE
`BOSTON, MA 02210
`UNITED STATES
`Email: jlstrademarks@wolfgreenfield.com, sgstrademarks@wolfgreenfield.com,
`tm-uspto@pearlcohen.com, sstella@wolfgreenfield.com
`
`Applicant's Motion to Suspend
`
`S1923.20000US01 Motion to Suspend Appeal Proceeding.pdf(81176 bytes )
`S1923.20000US01 EXHIBIT A.PDF(2145816 bytes )
`S1923.20000US01.EXHIBITB.PDF(353039 bytes )
`
`Stephanie G. Stella
`
`sgstrademarks@wolfgreenfield.com, vbowden@wolfgreenfield.com
`
`/sgs/
`
`07/23/2018
`
`

`

`
`
`
`
`
`
`
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`DOCKET NO.: S1923.20000US01
`
`Applicant
`Serial No.
`Date Filed
`Mark
`Class No.
`
`: Smooch Labs Inc.
`: 86/363993
`: August 12, 2014
`:
`JSWIPE
`: 45
`
`MOTION TO SUSPEND APPEAL PROCEEDING
`
`Pursuant to 37 C.F.R. § 2.117(c) and TBMP §§ 510 and 1213, Applicant Smooch Labs
`
`Inc. (“Applicant” or “Smooch Labs”), through its undersigned counsel, hereby moves the Board
`
`for an order suspending the appeal of the refusal to register U.S. Application Serial No.
`
`86/363993 for the mark JSWIPE (the “’993 Application”) pending the outcome of a related civil
`
`action. Said action (1) was filed in U.S. District Court for the Western District of Texas by
`
`Match Group, LLC (“Cited Registrant”), owner of U.S. Registration No. 4465926 for the mark
`
`SWIPE (the “Cited Mark”), which Registration was cited by the Examining Attorney in the
`
`likelihood of confusion refusal on which the instant appeal is based, (2) alleges infringement by a
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`third party of the Cited Mark, and (3) will likely involve a challenge to the validity of the Cited
`
`Mark. Because the outcome of the civil action will likely directly affect the outcome of the
`
`instant appeal, Applicant submits that good cause exists for suspension of the same pending
`
`resolution of the civil action.
`
`BACKGROUND AND GROUND FOR MOTION
`
`On April 3, 2018, Applicant filed a Request for Reconsideration (“Request”) of the
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`Examining Attorney’s refusal to register the ’993 Application under Trademark Act § 2(d) on the
`
`ground of likelihood of confusion in view of the Cited Mark. Applicant timely filed with its
`
`Request a Notice of Appeal. On May 3, 2018, the Examining Attorney denied Applicant’s
`
`6488701.1
`
`

`

`
`Request, and on May 24, 2018, the Board resumed the appeal proceeding and set the Appeal
`
`Brief deadline for July 23, 2018. Accordingly, Applicant’s motion is timely filed.
`
`On March 16, 2018, Cited Registrant filed an amended complaint against a third party,
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`Bumble Trading Inc. (“Defendant”), in the U.S. District Court for the Western District of Texas,
`
`in which Cited Registrant alleged, inter alia, that Defendant had infringed the Cited Mark. [See
`
`Exhibit A, First Amended Complaint, at 39 ¶¶ 139–45.] Defendant’s answer deadline is set for
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`June 30, 2018. [See Exhibit B, Docket Report, June 29, 2018 Text Order.] Because the validity
`
`of the Cited Mark is likely to be challenged by Defendant in the district court proceeding, and
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`thus directly bears on the outcome of the instant appeal, Applicant submits that good cause exists
`
`for granting the requested suspension.
`
`In view of the above, Applicant respectfully requests that the Board grant its motion and
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`suspend the instant appeal pending the outcome of Cited Registrant’s district court infringement
`
`proceeding.
`
`Respectfully submitted,
`
`
`____________________________________
`Stephanie G. Stella
`Wolf, Greenfield & Sacks, P.C.
`600 Atlantic Avenue
`Boston, Massachusetts 02210-2206
`Telephone: (617) 646-8000
`
`x07/23/18x
`
`
`
`
`

`

`(cid:1)
`
`(cid:2)(cid:3)(cid:4)(cid:5)(cid:6)(cid:5)(cid:7)(cid:1)(cid:8)(cid:1)
`EXHIBIT A
`
`

`

`Case 6:18-cv-00080-RP-JCM Document 10 Filed 04/30/18 Page 1 of 53
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`No. 6:18-cv-00080-RP-JCM
`
`JURY TRIAL DEMANDED
`
`§ § § § § § § § § § § §
`
`MATCH GROUP, LLC
`
`Plaintiff,
`
`
`
`v.
`
`BUMBLE TRADING, INC.
`
`
`
`Defendant.
`
`PLAINTIFF MATCH GROUP, LLC(cid:146)S FIRST AMENDED COMPLAINT
`
`I.
`
`INTRODUCTION
`
`Match Group, Inc. is the worldwide leader in online dating, with multiple popular brands
`
`of matchmaking services, including Match, Plenty of Fish, OkCupid, and more. Plaintiff Match
`
`Group, LLC, a wholly-owned subsidiary of Match Group, Inc., owns Tinder and its related
`
`intellectual property. Tinder is one of Match(cid:146)s flagship brands. When released, it launched a
`
`cultural revolution in social networking and online dating. Tinder is famously characterized by a
`
`stack of swipeable cards containing photographs of potential matches nearby. If a user is
`
`interested in the person shown, the user swipes right. If not, the user swipes left. If two users
`
`swipe right on each other, a match has been made, and the users are permitted to communicate
`
`with one another through the app. The app has become so well-known that an entire generation
`
`is often described as the (cid:147)Tinder generation.(cid:148)
`
`Match, through Tinder, spent significant time and effort developing and implementing
`
`the inventions embodied in versions of the Tinder app and claimed in a recently issued utility
`
`patent. Match, through its Tinder team, has spent significant time and money advertising the
`
`(cid:3)
`
`1
`
`

`

`Case 6:18-cv-00080-RP-JCM Document 10 Filed 04/30/18 Page 2 of 53
`
`Tinder brand, including Tinder(cid:146)s unique card-based swipe design. Match has also spent
`
`significant time and money designing an attractive, artistic app, protected by both design patents
`
`and copyrights. And Match has spent significant time and money on confidential internal
`
`research and development, including brainstorming potential feature roll-outs. As a result of all
`
`of these efforts, Match has significant intellectual property rights related to the Tinder
`
`application and the Tinder brand. This is a case about infringement and misappropriation of that
`
`intellectual property.
`
`Bumble, founded by three ex-Tinder executives, copied Tinder(cid:146)s world-changing, card-
`
`swipe-based, mutual opt-in premise. As acknowledged by third-party publications upon its
`
`release, Bumble is (cid:147)virtually identical(cid:148) to Tinder in its functionality and general look-and-feel.
`
`The competitive reason is obvious. Bumble sought to mimic Tinder(cid:146)s functionality, trade off of
`
`Tinder(cid:146)s name, brand, and general look and feel, meet user expectations that Tinder itself and its
`
`brand created, and build a business entirely on a Tinder-clone, distinguished only by Bumble(cid:146)s
`
`women-talk-first marketing strategy. Compounding matters, Bumble has released at least two
`
`features that its co-founders learned of and developed confidentially while at Tinder in violation
`
`of confidentiality agreements. All of these actions infringe upon Match(cid:146)s valid and enforceable
`
`intellectual property rights.
`
`To be clear, this case is not about any Bumble personnel(cid:146)s personal history with anyone
`
`previously at Tinder. This case is not about feminism or a business marketed based on feminist
`
`themes; Match applauds Bumble(cid:146)s efforts at empowering women, both in its app and offline, and
`
`Match cares deeply both about its women users and about women(cid:146)s issues generally. Rather,
`
`this case is simply about forcing Bumble to stop competing with Match and Tinder using
`
`(cid:3)
`
`2
`
`

`

`Case 6:18-cv-00080-RP-JCM Document 10 Filed 04/30/18 Page 3 of 53
`
`Match(cid:146)s own inventions, patented designs, trademarks, and trade secrets. Match brings this
`
`complaint to stop Bumble(cid:146)s unlawful use of this intellectual property.
`
`II.
`
`THE PARTIES
`
`1.
`
`Plaintiff Match Group, LLC ((cid:147)Match(cid:148)) is a Delaware Corporation with a principal
`
`place of business in Dallas, Texas at 8750 N. Central Expressway, Suite 1400.
`
`2.
`
`Bumble Trading Inc. ((cid:147)Bumble(cid:148)) is a Delaware corporation with a principal place
`
`of business at 1105 W 41st St., Austin, TX 78756.
`
`3.
`
`Although Bumble Trading Inc. continues to conduct business in Texas, as of the
`
`date of filing this complaint, Bumble has failed to comply with Texas(cid:146)s franchise tax laws.
`
`4.
`
`As of March 16, 2018, Bumble Trading Inc. forfeited its charter and corporate
`
`privileges under Section 171.309 of the Texas Tax Code.
`
`III.
`
`JURISDICTION AND VENUE
`
`5.
`
`This Court has personal jurisdiction over Bumble Trading Inc. consistent with the
`
`requirements of the Due Process Clause of the United States Constitution and the Texas Long
`
`Arm Statute. Bumble conducts business, maintains an established place of business, and has
`
`committed acts of patent infringement and/or has induced and/or has contributed to acts of patent
`
`infringement by others in the Western District of the Texas, the State of Texas, and elsewhere in
`
`the United States. In addition, Bumble(cid:146)s headquarters and principal place of business is located
`
`in Austin, Texas, within the District.
`
`6.
`
`This Court has original subject matter jurisdiction over Match(cid:146)s claims for patent
`
`infringement pursuant to the Federal Patent Act, 35 U.S.C. § 101 et seq. and 28 U.S.C. §§ 1331
`
`and 1338(a). This Court has original subject matter jurisdiction over Match(cid:146)s federal trade secret
`
`claim pursuant to 18 U.S.C. §§ 1836-39 et seq. ((cid:147)Defend Trade Secrets Act(cid:148)) and 28 U.S.C. §§
`
`1331 and 1343. The Court also has supplemental jurisdiction over the state law claims pursuant
`
`(cid:3)
`
`3
`
`

`

`Case 6:18-cv-00080-RP-JCM Document 10 Filed 04/30/18 Page 4 of 53
`
`to 28 U.S.C. § 1367.
`
`7.
`
`Venue is proper in this District for Bumble Trading, Inc. under 35 U.S.C. §
`
`1400(b) because Bumble Trading Inc. has a regular and established place of business in Austin,
`
`Texas and has committed acts of infringement in the District by making, using, and selling the
`
`Bumble app in the District. Venue is also proper for Match(cid:146)s remaining claims against Bumble
`
`under 28 U.S.C. § 1391 because Bumble resides in the District, has its principal place of business
`
`in the District, is subject to personal jurisdiction in this District, and a substantial part of the
`
`events or omissions giving rise to the claim(s) occurred within the District.
`
`8.
`
`The Waco Division of the Western District of Texas is convenient for both
`
`parties. The Waco Federal Courthouse is less than 100 miles as the crow flies from both
`
`Bumble(cid:146)s Austin-based headquarters and Match(cid:146)s Dallas-based headquarters.
`
`9.
`
`Match also has a significant server deployment in the Waco area.
`
`10.
`
`Bumble, meanwhile, employs at least four people at Baylor University. One
`
`campus director, along with three campus ambassadors, plan events on and around the Baylor
`
`campus to promote the Bumble app amongst Baylor University students.
`
`IV.
`
`FACTUAL ALLEGATIONS
`
`A.
`
`The Creation of Tinder
`
`11.
`
`The Tinder app was first conceived at and created by (cid:147)Hatch Labs,(cid:148) a technology
`
`incubator owned by Match(cid:146)s ultimate parent company, IAC/InterActive Corp ((cid:147)IAC(cid:148)). Sean
`
`Rad, Justin Mateen, Jonathan Badeen, Joe Munoz, Chris Gulczynski, Whitney Wolfe-Herd, and
`
`others formed the early Tinder team that conceived, designed, developed, and conducted initial
`
`marketing efforts for the Tinder app.
`
`12.
`
`Chris Gulczynski(cid:146)s position as Tinder was (cid:147)Lead Designer(cid:148) or (cid:147)Chief Creative.(cid:148)
`
`Gulczynski was integral in designing the general look and feel of the earliest iterations of the
`
`(cid:3)
`
`4
`
`

`

`Case 6:18-cv-00080-RP-JCM Document 10 Filed 04/30/18 Page 5 of 53
`
`Tinder app.
`
`13. Whitney Wolfe-Herd(cid:146)s position with Tinder was (cid:147)Vice President of Marketing.(cid:148)
`
`She assisted in promoting the app and encouraging users to sign up in the app(cid:146)s early days.
`
`14.
`
`Sarah Mick joined Tinder in 2013, after Tinder(cid:146)s initial launch. Mick(cid:146)s title was
`
`(cid:147)Vice President of Design(cid:148) and she assisted Gulczynski on various design aspects of the Tinder
`
`interface.
`
`15.
`
`First released in September 2012 for iPhone devices, Tinder revolutionized online
`
`dating services. From its earliest days, the premise of Tinder has been fundamentally the same.
`
`Tinder users are shown other users ((cid:147)potential match(es)(cid:148)) based on certain parameters,
`
`including age range and geographic location. The user is shown a card with a photo of a
`
`potential match nearby. The user is then given a choice to indicate interest (or lack thereof) in
`
`the potential match merely by swiping the card right (if interested) or left (if not). Although the
`
`earliest iterations of Tinder did not include the ability to swipe left or right, once implemented,
`
`swiping on Tinder became a cultural sensation.
`
`16.
`
`Tinder is now one of the most popular apps in the world.
`
`B. Match(cid:146)s Tinder-Related Intellectual Property
`
`17. Match has been awarded one utility patent, U.S. Patent No. 9,733,811 (the (cid:147)(cid:146)811
`
`Patent(cid:148)), entitled (cid:147)Matching Process System and Method,(cid:148) in connection with the functional
`
`innovations embodied in versions of the Tinder app. The (cid:146)811 Patent is attached as Exhibit A.
`
`18. Match has been awarded another utility patent, U.S. Patent No. 9,959,023 (the
`
`(cid:147)(cid:146)023 patent(cid:148)), entitled (cid:147)Match Process System and Method,(cid:148) in connection with other
`
`innovations embodied in Tinder app. That patent issued at 12:00 AM EDT on May 1, 2018, or
`
`11:00 PM CDT on April 30, 2018.
`
`19. Match has also been awarded numerous design patents related to ornamental
`
`(cid:3)
`
`5
`
`

`

`Case 6:18-cv-00080-RP-JCM Document 10 Filed 04/30/18 Page 6 of 53
`
`aspects of the Tinder app. One such patent, United States Patent No. D798,314 (the (cid:147)(cid:146)314
`
`Patent(cid:148)), entitled (cid:147)Display Screen or Portion Thereof with a Graphical User Interface of a
`
`Mobile Device,(cid:148) issued September 26, 2017. The (cid:146)314 Patent is attached hereto as Exhibit B.
`
`20. Match also has a federally registered trademark, Reg. No. 4,465,926, for (cid:147)swipe(cid:148)
`
`in connection with computer application software for mobile devices, namely, software for social
`
`introduction and dating services. Tinder first used this mark in commerce on or around March
`
`28, 2013. The registration for Tinder(cid:146)s (cid:147)swipe(cid:148) mark is attached as Exhibit C.
`
`21. Match is also currently seeking federal registration for (cid:147)swipe left(cid:148) and (cid:147)swipe
`
`right(cid:148) in connection with mobile applications for social introduction and dating services.
`
`22. Match also has common law trademark rights. For example, Match, through
`
`Tinder, has used the marks (cid:147)swipe left(cid:148) and (cid:147)swipe right(cid:148) in connection with mobile applications
`
`for social introduction and dating services nationwide. It first used these marks in commerce on
`
`or around March 28, 2013.
`
`23.
`
`(cid:147)Swipe,(cid:148) (cid:147)swipe left,(cid:148) and (cid:147)swipe right(cid:148) have become synonymous with the
`
`Tinder app.
`
`24.
`
`For example, the Telegraph listed (cid:147)swipe(cid:148) as a 2015 (cid:147)word of the year,(cid:148) writing
`
`that its choice (cid:147)reflect[ed] the popularity of the dating app Tinder, in which users can swipe their
`
`finger across the screen to approve or dismiss would-be dates.(cid:148)
`
`25.
`
`The English Oxford Dictionary also specifically defines the terms (cid:147)swipe right(cid:148)
`
`and (cid:147)swipe left(cid:148) in connection with the Tinder brand:
`
`(cid:3)
`
`6
`
`

`

`Case 6:18-cv-00080-RP-JCM Document 10 Filed 04/30/18 Page 7 of 53
`
`26.
`
`The English Oxford Dictionary also indicates that (cid:147)swipe right (or left) of dating
`
`app Tinder fame(cid:148) was consistently one of the dictionary(cid:146)s most (cid:147)popular look-ups(cid:148) in 2017.
`
`27.
`
`Similarly, a recent episode of the game show (cid:147)Jeopardy(cid:148) indicated that (cid:147)swipe
`
`left(cid:148) and (cid:147)swipe right(cid:148) were trademarks of the Tinder app.
`
`28.
`
`Indeed, Tinder(cid:146)s wordmarks have been famous since before Bumble even existed.
`
`For example, in a February 2014 article in TIME Magazine, TIME described the swipe in Tinder
`
`as (cid:147)iconic.(cid:148)
`
`29.
`
`Similarly, in February 2015, a CIO.com article described Tinder(cid:146)s (cid:147)swipe right(cid:148)
`
`as a (cid:147)trademark(cid:148) of Tinder.
`
`30.
`
`In fact, the Atlanta Hawks, in connection with Tinder, hosted a highly publicized
`
`(cid:147)Swipe Right Night(cid:148) at an Atlanta Hawks game in January 2015, reflecting the then-existing
`
`fame of the mark.
`
`31. Match, through Tinder, also has legally protectable trade dress. For example, the
`
`ornamental design claimed in US D798,314 is a non-functional design element with source-
`
`identifying significance, either because it is inherently distinctive or has acquired secondary
`
`meaning.
`
`32. Match, through Tinder, regularly advertises this design, showing a user(cid:146)s card
`
`being swiped left or right.
`
`(cid:3)
`
`7
`
`

`

`Case 6:18-cv-00080-RP-JCM Document 10 Filed 04/30/18 Page 8 of 53
`
`33.
`
`Third-party Internet publications have recognized that this design is synonymous
`
`
`
`
`
`
`
`with Tinder, describing the (cid:147)Tinder swipable cards interface(cid:148) as (cid:147)famous(cid:148) and as taking (cid:147)the app
`
`store by storm.(cid:148)
`
`34.
`
`This card swipe interface has also been described as (cid:147)iconic.(cid:148)
`
`35.
`
`Indeed, this interface is so well-known and iconic that, when other businesses use
`
`similar interfaces in connection with non-social network, non-dating apps, third-party
`
`publications describe such uses as making the app look like Tinder.
`
`36.
`
`As reflected by the United States Patent and Trademark Office(cid:146)s decision to grant
`
`the (cid:146)314 Patent, this card-swipe design is non-functional.
`
`37.
`
`Similarly, Match has protectable trade dress in its (cid:147)It(cid:146)s a Match!(cid:148) screen, shown
`
`below:
`
`(cid:3)
`
`8
`
`

`

`Case 6:18-cv-00080-RP-JCM Document 10 Filed 04/30/18 Page 9 of 53
`
`38.
`
`As with the swipeable card interface, this screen has distinctive trade dress
`
`
`
`
`
`source-identifying significance.
`
`39. Match, through Tinder, also regularly uses this screen as a source-identifier in
`
`various advertising materials, including in the Apple App Store, the Google Play Store, and on
`
`YouTube.
`
`40.
`
`Finally, Match, like most companies, has trade secrets related to confidential
`
`business planning and research and development efforts.
`
`41. Match Group, LLC owns all rights to the intellectual property identified above.
`
`C.
`
`Whitney Wolfe-Herd, Chris Gulczynski, and Sarah Mick Leave Tinder and
`Create a Tinder Copycat, Bumble.
`
`42.
`
`As discussed above, the early Tinder team included Sean Rad, Justin Mateen,
`
`Jonathan Badeen, Joe Munoz, Chris Gulczynski, Whitney Wolfe-Herd, and others. In December
`
`2013, Chris Gulcznyski and Sarah Mick left Tinder. Wolfe-Herd left Tinder shortly thereafter.
`
`Exactly one year after the effective date of Chris Gulczynski and Sarah Mick(cid:146)s severance
`
`agreements, Gulcznyski, Mick, Wolfe-Herd, and Andrey Andreev, the founder and CEO of
`
`(cid:3)
`
`9
`
`

`

`Case 6:18-cv-00080-RP-JCM Document 10 Filed 04/30/18 Page 10 of 53
`
`Badoo, another online dating competitor, launched (cid:147)Bumble.(cid:148)
`
`43.
`
`Like Tinder, Bumble is a mobile dating app that relies on a blind mutual opt-in
`
`premise before users communicate. For those seeking opposite gender relationships, Bumble
`
`requires the female user to send the first message.
`
`44.
`
`In the words of the publication TechCrunch, Bumble is (cid:147)almost identical to
`
`Tinder, complete with the design of the profile pages, setting, and swipe functionality.(cid:148)
`
`(emphasis in original).
`
`45.
`
`Texas Monthly recently wrote of Bumble: (cid:147)the app looked suspiciously like
`
`Tinder. . . . [I]t has that famous swipe-right-to-match function, a piece of game play so brilliant
`
`it had become a cultural reference point.(cid:148)
`
`46. Multiple other publications, such as BGR and the Los Angeles Business Journal,
`
`have described Bumble as a (cid:147)Tinder-lookalike.(cid:148)
`
`47.
`
`Like Tinder, Bumble users interact with (cid:147)cards(cid:148) containing photos of other users,
`
`as shown below.
`
`48.
`
`Like Tinder, Bumble users swipe left and right on cards containing user photos to
`
`
`
`
`
`10
`
`
`
`(cid:3)
`
`

`

`Case 6:18-cv-00080-RP-JCM Document 10 Filed 04/30/18 Page 11 of 53
`
`indicate whether or not the user is interested in the person shown.
`
`49.
`
`Like Tinder, swiping left indicates a user is not interested in the person shown
`
`while swiping right indicates that the user is interested in the person.
`
`50.
`
`Like Tinder, two users cannot communicate over Bumble until they both indicate
`
`interest in one another.
`
`51.
`
`Like Tinder, if two users both indicate interest, a screen is shown indicating a
`
`(cid:147)match.(cid:148)
`
`52.
`
`Bumble(cid:146)s (cid:147)match(cid:148) screen is nearly identical to Tinder(cid:146)s. At the top of the screen
`
`is a large exclamatory phrase set off in a font other than the app(cid:146)s default font. Below that, text
`
`indicating that the users have expressed a mutual interest is displayed in the app(cid:146)s default font.
`
`Below that, two circles, enclosed in white borders, display the photographs of the matched users.
`
`Below that, both apps include similarly sized and shaped buttons first presenting the option to
`
`either send a message and then, below that, giving the option to return to the swipe screen. Both
`
`(cid:147)match screens(cid:148) are placed against a dark background. These similarities are shown in the
`
`pictures below:
`
`(cid:3)
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`11
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`Case 6:18-cv-00080-RP-JCM Document 10 Filed 04/30/18 Page 12 of 53
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`53.
`
`The (cid:147)match queue(cid:148) screen, where users can find new matches and ongoing
`
`
`
`
`
`conversations with other matches, is also essentially identical. The screens include circle
`
`contacts of various users at the top indicating matches for which no messages have been sent.
`
`These contacts can be scrolled through horizontally. Below that is a (cid:147)messages(cid:148) or
`
`(cid:147)conversations(cid:148) navigation menu, situated for vertical scrolling, where ongoing conversations
`
`are selectable:
`
`54.
`
`One third-party publication noted when reviewing Bumble(cid:146)s user interface that
`
`this (cid:147)match queue(cid:148) is (cid:147)mostly lifted from Tinder.(cid:148)
`
`(cid:3)
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`Case 6:18-cv-00080-RP-JCM Document 10 Filed 04/30/18 Page 13 of 53
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`55.
`
`The look and feel within the chat screen is also nearly identical, as shown below:
`
`56.
`
`Compounding the confusion from the copycat looks of the Bumble app, Bumble
`
`
`
`
`
`
`
`also makes extensive use of Tinder(cid:146)s registered (cid:147)swipe(cid:148) mark as well as its (cid:147)swipe left(cid:148) and
`
`(cid:147)swipe right(cid:148) word marks.
`
`57.
`
`For example, in its (cid:147)About Us(cid:148) section of its website, Bumble describes itself as
`
`an app that (cid:147)shows you the people you want to see and lets you connect by a mutual opt in by
`
`swiping right.(cid:148)
`
`58.
`
`On its preview in the Apple App Store and Google Play Store, Bumble indicates
`
`that it is an (cid:147)industry-leading app [that] empowers users to swipe through potential connections
`
`across three different modes . . . .(cid:148)
`
`59.
`
`Bumble(cid:146)s (cid:147)July 2017 Press Stats Visual,(cid:148) located on its website, describes the
`
`number of (cid:147)swipes per month(cid:148) Bumble receives in its app.
`
`60.
`
`Bumble(cid:146)s (cid:147)the Beehive(cid:148) blog also contains dozens of instances of Bumble using
`
`the (cid:147)swipe(cid:148) term in connection with online or mobile matchmaking services.
`
`61.
`
`Additionally, Bumble includes a section of (cid:147)Frequently Asked Questions(cid:148)
`
`(cid:3)
`
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`Case 6:18-cv-00080-RP-JCM Document 10 Filed 04/30/18 Page 14 of 53
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`inquiring as to (1) why a user (cid:147)r[a]n out of people to swipe on(cid:148); (2) why a user can(cid:146)t (cid:147)start a
`
`conversation with somebody [the user has] swiped right on(cid:148); and (3) whether a user can (cid:147)go
`
`back(cid:148) if the user (cid:147)swiped the wrong way.(cid:148) Bumble describes its (cid:147)Backtrack(cid:148) feature as a way to
`
`deal with the situation where a user (cid:147)accidentally swiped left.(cid:148)
`
`62.
`
`Bumble(cid:146)s (cid:147)backtrack(cid:148) screen also makes prominent use of the swipe and swipe
`
`left marks, asking a user to (cid:147)confirm below to bring someone back that you swiped left on(cid:148) and
`
`to (cid:147)swipe to backtrack(cid:148):
`
`63.
`
`In press interviews, Bumble(cid:146)s CEO repeatedly references (cid:147)swipes,(cid:148) (cid:147)swipe lefts(cid:148)
`
`and (cid:147)swipe rights.(cid:148) For example, in a CNBC interview, located at
`
`https://www.youtube.com/watch?v=jyOMHVrVrZo, Bumble(cid:146)s CEO discusses (cid:147)swiping for
`
`opportunity,(cid:148) (cid:147)swiping to network,(cid:148) (cid:147)swipe left for no,(cid:148) (cid:147)swipe right for yes,(cid:148) and that Bumble
`
`was getting (cid:147)a lot of swipes.(cid:148)
`
`64.
`
`Similarly, Bumble(cid:146)s CEO described in a Fox Business interview on November
`
`23, 2015, located at https://www.youtube.com/watch?v=m5Ej92-mKkg, that on Bumble (cid:147)you
`
`swipe on one another, and so if you both mutually opt in to have a match . . . you swipe right on
`
`her, she swipes right on you, it(cid:146)s a connection.(cid:148)
`
`(cid:3)
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`Case 6:18-cv-00080-RP-JCM Document 10 Filed 04/30/18 Page 15 of 53
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`65.
`
`In another interview, from CNN Money on February 11, 2016, Bumble(cid:146)s CEO
`
`described Bumble(cid:146)s app as (cid:147)swip[ing] right or left on potential matches.(cid:148)
`
`66.
`
`Bumble(cid:146)s official advertising also makes use of the (cid:147)swipe right(cid:148) term. In an
`
`advertisement where two Bumble personnel provide tips for writing dating (cid:147)bios,(cid:148) one of the
`
`(cid:147)doctors(cid:148) indicates that she would (cid:147)swipe right(cid:148) on a bio she found particularly clever.
`
`67.
`
`In fact, it appears Bumble has taken additional, affirmative steps since its initial
`
`release to co-opt Match(cid:146)s trademarks and trade dress and trade off of Tinder(cid:146)s powerful brand.
`
`As discussed, in both apps, when two users express a mutual preference, a (cid:147)match screen is
`
`shown.(cid:148)
`
`68.
`
`Bumble(cid:146)s original match screen looked similar to Tinder(cid:146)s match screen, but it
`
`had some notable differences, including the location of the of the message and (cid:147)keep playing(cid:148)
`
`buttons:
`
`69. Moreover, the screen previously animated the circle photographs to pop out and
`
`drop below the (cid:147)keep playing(cid:148) and (cid:147)start a chat(cid:148) buttons, a feature not included in Tinder(cid:146)s
`
`match screen.
`
`70.
`
`Bumble has since updated to its app to mirror Tinder(cid:146)s. Moreover, Bumble
`
`decided to change the phrase (cid:147)you both liked each other(cid:148) to (cid:147)you both swiped each other.(cid:148)
`
`(cid:3)
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`15
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`Case 6:18-cv-00080-RP-JCM Document 10 Filed 04/30/18 Page 16 of 53
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`71.
`
`In July 2017, Bumble also released a paid feature, the (cid:147)SuperSwipe.(cid:148)
`
`FIRST CAUSE OF ACTION: INFRINGEMENT OF THE (cid:146)811 PATENT BY BUMBLE
`
`72. Match incorporates by reference the preceding paragraphs as if fully set forth
`
`herein.
`
`73.
`
`Bumble directly infringes the (cid:146)811 patent by making and using a system that
`
`practices the claims of Tinder(cid:146)s patent.
`
`74.
`
`Claim 1 of the (cid:146)811 Patent claims:
`
`A computer implemented method of profile matching, comprising:
`
`electronically receiving a plurality of user online-dating profiles, each profile
`comprising traits of a respective user and associated with a social networking
`platform;
`
`electronically receiving a first request for matching, the first request electronically
`submitted by a first user using a first electronic device;
`
`determining a set of potential matches from the plurality of user online-dating
`profiles for the first user in response to receiving the first request;
`
`causing the display of a graphical representation of a first potential match of the set
`of potential matches to the first user on a graphical user interface of the first
`electronic device, the first potential match corresponding to a second user;
`
`determining that the first user expressed a positive preference indication regarding
`the first potential match at least by determining that the first user performed a first
`swiping gesture associated with the graphical representation of the first potential
`match on the graphical user interface;
`
`(cid:3)
`
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`Case 6:18-cv-00080-RP-JCM Document 10 Filed 04/30/18 Page 17 of 53
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`in response to determining that the first user expressed the positive preference
`indication regarding the first potential match, automatically causing the graphical
`user interface to display a graphical representation of a second potential match of
`the set of potential matches instead of the graphical representation of the first
`potential match;
`
`determining that the second user has expressed a positive preference indication
`regarding the first user after determining that the first user expressed the positive
`preference indication regarding the first potential match;
`
`determining to enable initial communication between the first user and the second
`user in response to determining that both the first user has expressed the positive
`preference indication regarding the second user and the second user has expressed
`the positive preference indication regarding the first user;
`
`in response to determining to enable initial communication between the first user
`and the second user, causing the graphical user interface to display to the first user
`the graphical representation of the first potential match;
`
`determining that the first user expressed a negative preference indication regarding
`a third potential match of the set of potential matches at least by determining that
`the first user performed a second swiping gesture associated with a graphical
`representation of the third potential match on the graphical user interface, the
`second swiping gesture different than the first swiping gesture, the third potential
`match corresponding to a third user;
`
` preventing communication between the first user and the third user after
`determining that the first user has expressed the negative preference indication
`regarding the third user;
`
`determining that the first user expressed a positive preference indication regarding
`a fourth potential match of the set of potential matches at least by determining that
`the first user performed the first swiping gesture associated with a graphical
`representation of the fourth potential match on the graphical user interface, the
`fourth potential match corresponding to a fourth user; and
`
`preventing communication between the first user and the fourth user after
`determining that the fourth user has expressed a negative preference indication
`regarding the first user.
`
`75.
`
`Claim 4 of the (cid:146)811 Patent claims:
`
`A non-transitory computer-readable medium comprising instructions that, when
`executed by a processor, are configured to:
`
`electronically receive a plurality of user online-dating profiles, each
`
`(cid:3)
`
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`Case 6:18-cv-00080-RP-JCM Document 10 Filed 04/30/18 Page 18 of 53
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`profile comprising traits of a respective user and associated with a social
`networking platform;
`
`electronically receive a first request for matching, the first request
`electronically submitted by a first user using a first electronic device;
`
`determine a set of potentia