Ip Protection for Love: Dating App's Feuds and Foes
| Publication year | 2023 |
| Citation | Vol. 30 No. 2 |
IP Protection for Love: Dating App's Feuds and Foes
Meredith Williams
University of Georgia School of Law, jwt74222@uga.edu
IP Protection for Love: Dating App's Feuds and Foes
Cover Page Footnote
J.D. Candidate, 2024, University of Georgia School of Law. Thank you to my friends, family, and mentors for their steadfast support.
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IP PROTECTION FOR LOVE: DATING APP'S FEUDS AND FOES
Meredith Williams*
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I. Introduction...............................................................................................430
II. Background.................................................................................................431
A. Online Dating: A History...........................................................431
B. App Overload...................................................................................433
C. Futuristic Dating: AI Matchmaking.......................................435
III. ANALYSIS.......................................................................................................436
A. §101's application to digital interface improvements . 436
B. Should AI Matchmaking Processes be Patentable?........439
VI. Conclusion....................................................................................................443
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I. Introduction
Romantic relationships of yesteryear were born "in the wild." People met in class, at a bar, coffee shop, or other public settings. Today, the script has changed and—especially for those seeking love in a metropolis— "just get on the apps!" is often-shared advice. Indeed, modern dating and dating apps have become ubiquitous, with nearly 50 percent of 18—29-year old's reporting use of online dating platforms in their lives.1 While at the individual level, experiences vary, there is little doubt about the notoriety and success of large companies like Match, Tinder, Bumble, and Grindr.2
It may be unsettling to discuss an app's profit incentives that facilitate human connection, but these apps are not non-profits. To their employees, shareholders, and managers, it is just another day on the job, and money must be on the table.
Dating apps proliferated after Tinder—in 2012—took the market by storm.3 There are countless dating apps to choose from with an estimated 8,000 options.4 Like any competitive industry, these companies must figure out how to distinguish themselves. One method of doing so is intellectual property protection. Since Tinder was an initial rising star, other apps were accused of subsequently mimicking the company's strategies.5
A poignant example of such a distinguishing factor is Tinder's "swipe right" feature.6 It recently has brought rise to litigation and surfaced questions of how the apps can compete without infringing on each other's intellectual property rights. This Note explores the patentability of dating apps' digital interfaces and the future of Intellectual Property ("IP") in dating apps.
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Before diving into the specific feud and legal implications involved with two popular dating apps, some relevant context will be revealed. This section will discuss a brief history of online dating, the explosion of online applications, and an example of what is in store for the future of the dating app world.
A. Online Dating: A History
How did online dating pervade our societies? A look into the genesis and development throughout the past few decades provides insight into this question.
Match.com was the first company to introduce the concept of online dating.7 They still exist today along with others such as eHarmony. Their methods include, for example, eHarmony using extremely detailed questionnaires.8 The eHarmony approach boasts to predict compatibility based on user's answers.9 This may work considering "71 percent of female users and 69 percent of male users find their future spouse on eHarmony within their first year on the site."10 But despite eHarmony's initial popularity and success, new players dominate today. An online dating experience geared toward younger demographics was bound to surface.
By 2013, people in their late teens to early thirties finally used online dating; their number grew by 170 percent.11 Dating apps like Tinder did not use detailed questionnaires, though they employed a swipe.12
"Swiping right" is a familiar vocabulary term for the modern dater. But what does it mean? Googling the phrase pulls up the definition "(on the online dating app Tinder) indicate[s] that one finds someone attractive by moving one's finger
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to the right across an image of them on a touchscreen."13 This innovative feature revolutionized, or at least drastically changed the online dating world.14
There are several hypotheses regarding the success of the swiping feature. A compelling explanation explores how the feature interacts with the human brain. The gesture "employs what is called a variable reward schedule. Similar to a slot machine, each swipe builds curiosity, and the brain is intermittently rewarded with dopamine when you get a match."15 The game-like aspect of Tinder has created somewhat of an addiction for many users.16 To put the potential for addiction in context, Tinder boasts 1.6 billion daily swipes.17 Since billions are difficult to conceptualize, 1.6 billion seconds equates to over 50 years.18 That is, objectively, an enormous quantity of swipes.
The current bottom line: "[s]wiping singles are big money — it is estimated that the dating market is worth $12bn [] globally."19 So, how does a person select what dating app to use amongst the litanies? Each app is known societally for different features or reputations.20 Tinder is known for the swipe and for those pursuing physical connection.21
Bumble, of course, has its own reputation within the dating app sphere. "Bumble was founded by three ex-Tinder's co-founders, Whitney Wolfe Herd, Chris Gulczynski[,] and Sarah Mick."22 Bumble distinguishes itself by only allowing women to initiate conversations on the app.23
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Since Bumble's founding in 2014, it has been a strong competitor to Tinder.24 A 2017 Forbes article listed that "[Bumble] had acquired more than 22 million registered users and achieved a 70 [percent] year-over-year growth, a figure that was ten times larger than Tinder."25 Further, while Match owns dozens of apps, Bumble owns three, including Badoo, "an older app that's more popular in Europe and Latin America, [that] is still the second most downloaded dating app in the world behind Tinder."26
Match, Tinder's parent company, offered to acquire Bumble in 2017, but Bumble declined the offer.27 Some sources believe "the [intellectual property] lawsuit against Bumble may serve as a 'bargaining chip' by Match to pressurize Bumble to return to the negotiation of the previously-declined acquisition deal: The idea is that if Bumble is acquired by Match Group, the lawsuit [would] necessarily be dropped."28
The two companies have a complex relationship. "Today, Bumble's eponymous, female-oriented app is Tinder's closest competitor in the U.S."29
B. App Overload
It is important to have an overview of the scope of the online application boom to understand the magnitude of competition between dating apps in today's market.
In the modern age of technology, many entrepreneurs seek to launch their ideas through Apple or Android app stores.30 It should not come as a shock, considering that across all app store platforms (i.e., Google play and the Apple App store), around 5.1 million apps are available to download.31
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Like other business ventures, online applications are eligible for many forms of intellectual property protection.32 Their logos can be trademarked, the visual arts created on them can be copyrighted, and their interface can be patented.33
Aside from the colossal size of the app market, there are other motivations for creating an app. "[T]he invention of software apps can be seen as related to demand-pull and technology-push innovation factors," but there is little formal research on the factors that drive app production.34 App creators have significant power over consumers and competitors.35 "[S]ellers [can] slow down performance, add more desirable, useful, and expensive features later on, or even discontinue some older versions of apps "36
Apps have also given rise to entirely new industries, "such as UBER, where the firms own few physical assets and their main 'product' is the software that drives the apps and their business."37 Arguably, Tinder and some other dating apps fall into this category because the majority of users utilize the free interface, not a tangible, fungible item available through the app.38
Algorithms are another important method of app differentiation. For instance, dating apps like Tinder used to use an Elo rating system39 and score "to gauge how other profiles interacted with yours[,] [i]n addition to logging your own Likes (right swipes) and Nopes (left swipes) "40 Tinder no longer uses this system, and their position is that the more time you spend on the app, the better your chances are of a good match.41
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"Hinge uses the Gale-Shapely algorithm."42 This algorithm can be explained by a hypothetical group of ten men and ten women.43 "[O]ne group (either the men or women) pick their first choice, and if they get rejected they move on to their second choice. Continue until none of the people left want to get matched anymore."44
While app creators leave us in the dark regarding their deepest motivations, production of apps is a popular way for companies to launch and, as we will see, can rise to intellectual property litigation.45
C. Futuristic Dating: AI matchmaking
Even in the backdrop of dating apps' history and current landscape, the question of what is to come lingers. The possibilities are endless, but this Note will examine one app preparing for its launch.
If online dating does not make the average person...
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