Legal Issues

by Mike Masnick


Filed Under:
apps, dating, patents, trademark

Companies:
jdate, jswipe



Almost Everything About JDate's Lawsuit Against JSwipe Is Absurd: Trademark & Patent Insanity

from the make-it-go-away dept

Last month, I first read about popular Jewish dating website JDate suing a Jewish Tinder clone JSwipe via an an article by Greg Ferenstein describing the outline of the lawsuit -- though, unfortunately suggesting that the lawsuit itself was legitimate. I got a copy of the complaint and have been meaning to write up a more detailed analysis of the lawsuit, but in the past few days, the Observer got a lot of attention for discussing the patent aspect of the lawsuit and Vice's Motherboard published an article explaining how the patent in question is absurd. Actually, it's worse than that. The whole lawsuit is absurd, and it starts with the trademark claims that come before the patent ones.

On the trademark front, JDate makes the argument that it has trademarked any dating site/app with the letter "J" in front of it, even though its actual trademarks are on specific things like JDate and JMag.
Plaintiff is the owner of a broad trademark portfolio related to its various products and services, including a large family of marks using the "J" prefix to indicate products and services ("J-family") designed to meet the needs of the Jewish community....

[....] Plainiff has expended significant time, labor, expense, skill, research and development over the course of over 17 years to develop, advertise, market, and promote its iconic J-Family of marks, all originating with its oldest mark, the progenitor of the J-Family of Marks: JDATE.
Except if there's no public confusion over this, it's difficult to see how there's a legitimate trademark case, nor is there any realistic likelihood that "JSwipe" somehow "dilutes" the trademark of JDate. This just seems like sour grapes by JDate for not recognizing how the market for dating services was moving quickly towards the Tinder-esque "swiping" model. The entire trademark argument from JDate parent Spark Networks, is focused on "JDATE" itself, without ever realistically explaining why or how that mark should apply to JSwipe, which is in no way similar to JDate other than starting with a J. And that "J" doesn't indicate "JDATE" so much as it indicates "Jewish."

Ferenstein's article submits at least anecdotal evidence that people are not confusing JSwipe with JDate or assuming they're in any way connected:
It just so happened that at the same Summit gathering where I met Yarus, I also found a nice Jewish couple that met on Jswipe. “I was shocked to hear this, because it sounds unbelievable to me. I never once thought that there was any affiliation between Jswipe and Jdate,” said the the female of the couple, who was unaware of the lawsuit.

I’ve also been a longtime Jswipe user, and I never thought the app was related to Jdate.
Moving on to the patent side of things, the Observer piece points out that it, too, is ridiculous. The patent in question is US Patent 5,950,200 and appears to basically describe "matching people for dating on the internet." In other words, it takes an old generic concept (matchmaking) and adds "on the internet." That's not supposed to be patentable. The EFF's Daniel Nazer does a good job highlighting how ridiculous the patent is, pointing to last year's Supreme Court ruling in the Alice case, noting that abstract ideas on the internet aren't patent-eligible:
From a theoretical legal perspective, “This is not a close case. It’s clearly invalid under the Alice standard,” Mr. Nazer said. “It’s disappointing that an attorney would file this case.”
Over at Vice, Public Knowledge's Charles Duan digs even deeper:

Setting aside the use of a computer, this is no new process at all. It’s nothing more than a dating service that asks people who they like and matches up the mutual interests. It’s the classified ads. It’s speed dating. It’s practically the premise of You’ve Got Mail (which is based on a 1937 play, predating JDate’s patent by decades).

In fact, it goes back far beyond even all of those. A newspaper article from 1799 described a “new and original imperial and royal plan” used in “all the polished courts throughout the known world!” According to this plan:


Every person, of either sex, who desires to enter into a treaty of marriage, is first to subscribe a certain sum. All ladies and gentlemen to describe themselves, by real or fictitious names, as they may choose; and give a detail of themselves…

The subscribers to be furnished with a list of descriptions, and when one occurs likely to suit, to signify the individual would be glad to correspond with the number in question, &c.; and, if mutually approved, the interview may be afterwards arranged.

This is exactly like JDate’s patent, even down to the user IDs.

Even in Ferenstein's article -- which bizarrely claims that JDate has a legitimate patent case (it doesn't) -- he quotes a lawyer saying that the patent is "way too broad," though, bizarrely, immediately discounts this by noting it was granted in 1999, suggesting that it's okay because of that. It may be true that the USPTO was granting lots of bad patents in 1999 (it was!), but that doesn't change the fact that this patent is almost certainly invalid.

The Observer article further notes that it appears at least some other dating sites have licensed this patent (including dating site giant IAC), but many others have not, nor have they been approached. Instead, it appears that JSwipe may have been mostly targeted because JDate wanted to buy the site and JSwipe wasn't interested -- as noted in the Ferenstein article:
... sources close the case tell me that Jdate low-balled an acquisition offer that wouldn’t even pay for a high-priced Bat Mitzvah party, so Jswipe fought the lawsuit rather than sell.
Of course, for a bit of a different take, Ferenstein also speaks to some rabbis who argue that the lawsuit goes against Jewish law:
“From a Judaic ethics standpoint this lawsuit is inappropriate,” argues Rabbi Shlomo Yaffe, Dean of the Institute of American and Talmudic Law, regarding competition between Jdate, Jswipe, and other Jewish dating sites. Jewish law, he tells the Ferenstein Wire, permits unlimited competition for services essential to the continuation of the faith.
But even under the American law system, under which this case was filed, the whole thing seems ridiculous -- and not just the patent side, but the trademark side as well. Instead, this looks like yet another familiar case of a company using intellectual property laws not for their intended purpose, but rather to limit innovation and competition after they failed to innovate.

Reader Comments

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  • identicon
    Anonymous Coward, 12 Aug 2015 @ 1:27pm

    A different kind of confusion

    To someone who is clueless about both of these services, Jswipe sounds more like a Java function than a Jewish dating service.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 12 Aug 2015 @ 1:28pm

    Not sure why ANY jewish person would want to have anything to do with Spark Networks to be honest.
    They're the ones running christianmingle, a few antisemitic right-wing 'services', and has some VERY suspect links to various (illegal) neo-nazis groups in Germany.

    Neo-nazi company owns 'Jews-only' dating service should be ringing alarm bells like crazy.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 12 Aug 2015 @ 2:41pm

    These JDate owners seem like a lot of CWords.

    reply to this | link to this | view in chronology ]

  • identicon
    Zonker, 12 Aug 2015 @ 3:01pm

    I guess I'd better avoid accessing JDate on my jPhone then. It would probably sue itself into oblivion.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 12 Aug 2015 @ 3:36pm

    Oh, yeah? Well both companies are infringing my patent on "a religion based on the Torah."

    reply to this | link to this | view in chronology ]

  • icon
    OldGeezer (profile), 12 Aug 2015 @ 5:51pm

    Are they going to go after Jdownloader?

    It puts a J in front of a very common word. In the trademark business it no longer seems to matter if there is any remote possibility of brand confusion. If Jdownloader predates any of their claims can they go after them? Common sense has no place in with all the litigious insanity.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 12 Aug 2015 @ 11:37pm

    Eastern music is infringent as well.

    All the retailers that sell jpop must be in a furor over this.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 13 Aug 2015 @ 4:28am

    I can't say that I agree. You assume there is no public confusion but I'm pretty sure if you surveyed people who use these services in the Jewish community, you'd find a significant percentage who believe JDate started JSwipe.

    Also, although I'm not a patent attorney and may be wrong, my understanding is that the patent relates to JDate's
    "Secret Admirer" feature whereby you can anonymously indicate an interest in someone and, if they do the same, you'll be notified of the match. This seems to me to be essentially the same as what JSwipe offers (which isn't to say that the patent should have been awarded in the first place).

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 13 Aug 2015 @ 9:40am

      Re:

      Not really.
      Most of the jewish communities aren't stupid enough to use Jdate.

      They quickly realized it was a thinly veiled guise to gather names and IDs.

      reply to this | link to this | view in chronology ]

  • identicon
    Joe, 13 Aug 2015 @ 10:46am

    J

    What about JStreet?

    reply to this | link to this | view in chronology ]

  • icon
    toyotabedzrock (profile), 13 Aug 2015 @ 9:46pm

    Are they associated with JPay too?

    reply to this | link to this | view in chronology ]

  • identicon
    Brett, 16 Nov 2015 @ 4:42pm

    There is still lots of innovation to come in dating...

    I agree with your article. However, motherboard's article whilst pointing out the deficiencies of this case, seems way to dismissive of dating inventions in general, because dating has been "around a long time". It's kind of like saying patents are not applicable in car tyre manufacture because cars have have always had wheels... Underlying mechanisms of dating processes are often very complex. The real problem with the patent seems to be that it is way too broad, as you point out. I'm surprised Match.com is licensing it. Maybe not for much longer...

    reply to this | link to this | view in chronology ]


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