Dirty Laundry - How the dating app famous for threesomes is responding to legal action from Tinder with a hashtag and dirty socks

If you find dating apps confusing, you are not alone. Match Group, the owners of Tinder (the most popular dating app in the world) appear to share your concern.

Tinder has sent a complaint for trade mark infringement to 3nder, a dating app that connects "open-minded couples" with individuals looking for an open-minded experience. Tinder, on the other hand, promises a chance to find "a friend, a date, a romance, or even a chance encounter [that] can change someone's life forever."

According to 3nder, Tinder is threatening to sue them for trade mark infringement in the High Court. It seems Tinder is concerned that the two apps' names are too similar and could confuse customers looking for marriage or a new running buddy, who unwittingly find themselves in the midst of a threesome instead.

The test for infringement

In the UK, Tinder's trade mark is registered for three classes of goods and services: dating software, social media websites and internet-based dating or social networking. These classes clearly apply to 3nder as well.

Under the Trade Marks Act 1994, 3nder could therefore be liable for infringement if:

1. its name is "similar to the trade mark [and] used in relation to goods or services identical with or similar to those for which the trade mark is registered", and
2. the similarity between 3nder and Tinder has resulted in the likelihood of the public being confused, or wrongly associating the two apps.

Considering the test above, it is easy to argue that Tinder has a strong case but, like all trade mark cases, there is an element of subjectivity that makes it difficult to judge how the Court would decide.

The name game

Are the two names similar enough to be confusing? According to Tinder, it comes down to the question of the pronunciation of "3nder". The answer to this question is no easier than it looks.

Some customers call the app "3-ender", a fairly accurate description of its purpose. For others it is "threen-der", a somewhat less catchy version. Unhelpfully for 3nder, the owner once said the app "can be pronounced 'Thrinder', to rhyme with 'Tinder'", which Tinder argues is evidence of deliberate association. True to its open-minded nature, 3nder says it embraces all pronunciations of its name.

The case for confusion

Even if Tinder wins the pronunciation argument, it would still face significant hurdles to prove that the public are likely to be confused. Firstly, while the apps operate in a similar market, they do serve rather distinct purposes. 3nder have a good chance of convincing the Court that most people do not confuse monogamous dating with threesomes.

Another point 3nder are likely to raise is that similarities between app names are widespread. The number of apps that use the 'nd(e)r' ending is ever-increasing and includes Flickr, Tumblr, Blendr and Nder. In fact, Tinder was launched 6 months after 'Grindr', another dating app that uses the 'nd(e)r' format. So far, these similarities do not appear to have caused mass public confusion, probably because Grindr's target market is well-known. It might be difficult for Tindr to prove that '3nder' is any different. One might also argue the '3' in '3nder' is a unique, informative feature that makes it easy to distinguish from Tinder, the world-famous "friend"-finder.

3nder's #response

As for 3nder, the app's owners appear to be focusing on a reputational rather than legal response. Perhaps aware of their target group's preference for social media phenomena over intellectual property rights, 3nder started a hashtag that went viral in 24 hours, #TinderSuckMySocks. The campaign encourages individuals to send Tinder their dirty socks or to post images of them online.

The hashtag campaign has certainly brought the dispute into the limelight, but will that be enough to make Tinder back down? 3nder has already said it would not be able to afford a legal dispute on this scale. Its founder has also issued a public statement that points out, "no one should have a monopoly on love". Whether Tinder has the monopoly on dating apps pronounced '...inder', however, is still up for debate.

If you require further information on anything covered in this briefing please contact Alicia Mendonca ([email protected]; 020 3375 7614) or your usual contact at the firm on 020 3375 7000.

Further information can also be found on the IP Litigation page on our website.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, June 2016