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