Article by Clyde Shuman
The Trademark Trial and Appeal Board has sustained an Opposition to registration of the proposed mark POLITICAL TINDER, finding that a likelihood of confusion existed between that and registered marks for TINDER. Match Group, LLC v. RLP Ventures, LLC, Opp. No. 91230917 (TTAB, Nov. 25, 2020).
RLP Ventures had sought to register the proposed mark POLITICAL TINDER for use in connection with, inter alia, advertising and marketing services provided by means of indirect methods of marketing communications, namely, social media, search engine marketing, inquiry marketing, internet marketing, mobile marketing, blogging and other forms of passive, sharable or viral communications channels; providing an internet website featuring news and information in the field of national and international politics; providing information regarding political issues, knowing how to vote and knowing how to register to vote; news reporter services in the nature of news analysis and news commentary; and providing news in the nature of current event reporting relating to politics via the Internet.
Match opposed registration of the proposed mark, citing its four registered TINDER marks, for use in connection with, inter alia, hosting computer software applications for others; downloadable software in the nature of a mobile application for internet-based dating and matchmaking; downloadable software in the nature of a mobile application in the field of social media; and internet-based social networking, introduction and dating services.
Match argued a likelihood of confusion between the proposed mark POLITICAL TINDER and, inter alia, its registered TINDER mark for a “social media mobile phone app that is a highly interactive platform through which users can create, share, and read short profiles and communicate online.” Match also asserted claims based on trademark dilution and no bona fide use by RLP Ventures when it filed its use-based application.
The Board sustained Match’s opposition on the basis of likelihood of confusion, finding that all relevant DuPont factors[1] weighed in Match’s favor.
To begin, on the question of similarity of the marks, the Board noted that Match’s registered TINDER mark and RLP Ventures’ proposed mark POLITICAL TINDER were comprised, in whole or in part, of the arbitrary term TINDER and that Match’s registered mark was encompassed within the proposed mark. “”[I]n such cases, confusing similarity has often been found.” (citing cases). The Board also found that TINDER was the dominant term in the proposed mark because TINDER was a merely descriptive term which has been disclaimed. As a result, because of the shared term TINDER, dominant in RLP Ventures’ proposed mark, the Board held that the marks, when viewed in their entireties, were similar in sound, appearance, meaning and commercial impression.
On similarity of goods and services, the Board compared Match’s identification of goods, including “downloadable software in the nature of a mobile application in the field of social media, namely, for sending status updates to subscribers of web feeds, uploading and downloading electronic files to share with others,” with RLP Ventures’ “providing information about political elections” and “providing information and news in the field of current events relating to politics.”
The Board rejected RLP Ventures’ argument that Match’s goods and services related to dating products, saying that it could not read limitations into an identification of goods or services. Per the Board, “We [ ] must read Opposer’s identified downloadable software for…uploading and downloading electronic files to share with others as encompassing content that is political in nature.”
The Board also cited evidence that politicians had used Match’s goods and services to discuss and promote political candidates. The Board found that Match’s goods included downloadable software for, inter alia, sending status updates of web feeds pertaining to political figures, and uploading/downloading files pertaining to political figures, for sharing. Thus, per the Board, RLP Ventures’ “providing information about political elections” and “providing information and news in the field of current events relating to politics” were related to Match’s downloadable software.
On channels of trade, the Board found that the involved goods and services were directed to members of the general public. Accordingly, purchasers and trade channels were overlapping.
On strength of mark, the Board noted that Match’s standard character TINDER mark was registered without a showing of acquired distinctiveness, and thus was presumed to be inherently distinctive. The Board also reiterated that “TINDER” was arbitrary as pertaining to Match’s goods.
The Board also cited evidence from Match concerning the commercial strength of its TINDER mark, including global revenues and major media coverage for the app. The Board discounted third-party registrations including the term TINDER, saying it could not locate evidence of same in RLP Ventures’ submissions.
Given the evidence, the Board found that Match’s TINDER mark for its dating app “falls on the stronger side of the spectrum from very strong to very weak.” Per the Board, Match had established that its mark “is entitled to a broader scope of protection than is normally accorded to a distinctive mark with less recognition, but not that its mark is a famous mark.” Accordingly, this DuPont factor weighed “slightly” in favor of a finding of likelihood of confusion.
On conditions of sale and respective purchasers, the Board found that the parties’ respective goods and services may be purchased (or used) on impulse, favoring a finding of likelihood of confusion.
The Board concluded, finding that RLP Ventures’ proposed mark POLITICAL TINDER was likely to cause confusion with Match’s registered mark TINDER for its “downloadable software in the nature of a mobile application in the field of social media, namely, for sending status updates to subscribers of web feeds, uploading and downloading electronic files to share with others.”
Because the Board found for Match on its likelihood of confusion claim, the Board did not reach the merits of Match’s other claims. The Board sustained Match’s opposition on the ground of likelihood of confusion, refusing registration to RLP Ventures.
[1] In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973).
