The case revolved around an opposition action before the UK Intellectual Property Office filed on 27 March 2019 by Match Group LLC against a UK Trade Mark Application filed for “LOVE AT FIRST SWIPE” in relation to a range of goods and services, including computer and mobile software products, jewellery, baggage and clothing goods, advertising, business and retail services, software and dating services, the application had been made by an individual, Amarjit Singh Dhanda, who is connected to Love At First Swipe Limited.
Match Group LLC, who own the dating app “Tinder” brought the opposition on the basis of earlier UK Trade Mark Registration for SWIPE covering dating services, an EU Registration for SWIPE covering clothing goods and at least initially relied upon an EU Registration for SWIPE in relation to computer software goods and dating services. However surreptitiously during the UK proceedings this EU Registration was cancelled on the basis of an action filed by the other well-known dating app, Bumble, the reasoning behind this that SWIPE was deemed descriptive to these services. Match failed in an appeal of that decision and did not take the action further (Case R 1272/2020-2).
One might have thought following this action, more caution might be taken by Match when choosing to assert the word SWIPE, nonetheless Match continued to challenge LOVE AT FIRST SWIPE on the basis of concern over the inclusion of the word SWIPE. Match also relied upon
registrations for “ANY SWIPE CAN CHANGE YOUR LIFE” and “SWIPE SESSIONS”. In addition to Match’s registered trademark rights, they also relied on argument of a reputation in the word SWIPE in relation to dating services, as well as passing off rights in SWIPE and SWIPE RIGHT in relation to online dating and social introduction services.
The opposition however largely failed, there was finding of some similarity in relation to clothing, footwear and headgear goods and the associated retail of these, essentially Match had some success in relation to these goods as the SWIPE was considered to have some distinctive character in relation to these goods, however for the remainder of the goods and services of the LOVE AT FIRST SWIPE application, and crucially for goods and services such as computer and mobile software and dating services, the opposition was not successful.
With regards the reputation claims under SWIPE, this was also unsuccessful as it was found there was insufficient evidence to demonstrate a reputation in SWIPE solus, further it was clearly stated that even if a reputation had been found, against the mark “LOVE AT FIRST SWIPE”, the role of the word SWIPE within this application was descriptive, referencing interaction with the goods/services and also clearly the mark intimated a pun on the well-known saying “love at first sight”, thus there would have been no similarity in the end even if sufficient evidence had been deduced. Similarly, no passing off grounds were found.
The decision is interesting, particularly the implications for Match Group and how much they can assert SWIPE going forward. Ultimately, and as suggested above, one might have expected some more reservation over assertion in the word SWIPE given their cancellation experience before the EU Office, particularly given that this action was subsequently directly applied to cancel Match’s cloned UK trade mark registration for SWIPE under the provisions of the Brexit Withdrawal Agreement by the Applicant’s attorneys. Therefore this case warrants further risk to Match if trying to assert SWIPE solus, as the Hearing Officer rightly established, the word SWIPE within the application for LOVE AT FIRST SWIPE had descriptive value at most.
Match may be seeking to enforce rights in SWIPE to avoid genericism and try to monopolise this term, but arguably, even if we were to accept that at the genesis of dating apps utilisation of the word SWIPE had been coined by Match, it was already widely used and has continued to be used in relation to any interactive touch screen feature and the evidence in the case established this, thus Match are arguably fighting a losing battle. Match may still hold one UK Registration for SWIPE solus for dating services, but the value of this may also be open to question and so arguably we may all keep swiping to our heart’s content on any platform.
HGF Limited acted for Amarjit Singh Dhanda in the proceedings
Written by Suzan Ure, Chartered Trade Mark Attorney, HGF Limited