The british entrepreneur, author and motivational speaker, Shed Simove, decided to put out on the market a new dating app, conveniently called Shinder. The author created the online dating platform with the purpose of its users having one single correspondence: Shed Simove himself.
Shed Simove, convinced that there was potential on his creation, decided to proceed with the registration of the trademark “Shinder” in the UK. However, this trademark application suffered an opposition on behalf of the giant Match Group, company that owns the famous app Tinder and which inspired Shinder.
Besides Tinder, Shed Simove was contacted by the legal representatives of Schindler, a swiss elevator fabricant, that notified the British entrepreneur to not enter the elevators and escalators market, being unlikely that such might happen.
Shinder’s creator defended himself from the litigation envolving Tinder, arguing that anyone could want to have their own dating platform and, as such, decided to register its platform Shinder as a trademark, going even further underpinning that even if it is a ”white label” in question, people should have the possibility to create their own version, referring that ”Jane can create Jinder, and so on”.
However, Tinder holders that, in 2016 prosecuted the app 3ender (which pronounces Thrinder, being an app for bigamist couples) for trademark infringement (which led 3ender to change its name to Feeld), decided to proceed with an opposition against the registration of trademark Shinder, next to the United Kingdom Intellectual Property Office (UKIPO).
From the Industrial Property Law view, in first place, trademarks share high indices of similarity, not only in terms of phonetics, but graphic terms too. Upon a brief analysis of the trademark signals in question, it is verified that the same type of letter is used, being the main difference the design of the “i”, which, in Tinder’s case, has a little flame, and, in Shinder’s case, there’s a devil silhouette. Regarding the colors, there are small differences since it’s still a red color, although from different shades and despite the inversion of the colors of the letters and trademark backgrounds.
According to UKIPO’s data, Shed Simove applied for a national trademark registration called Shinder for services in classes 9, 42 and 45 of Nice Classification, i.e., exactly the same classes that Tinder had protected for similar products and services. Now, before these facts, it is consensual that the presented opposition by the owners of Tinder has a high chance to prevail, despite some reservations regarding the risk of confusion by the consumer public, for being debatable that the public may not foresee that these are two different apps. Nevertheless, this doesn’t affect the fact that Shed, by registering the trademark Shinder, is taking advantage of the good name and notoriety of Tinder, in other words, unfair competition.
An eventual interesting matter, might be the defense of Shed Simove based on parody, which, however, may come as difficult since this legal defense is not envisaged on the European Union.
One of the reasons for non-existant legal means for defense by parody might be related to the fact that this may affect the reputation of the previously registered trademark and unfairly taking advantage of its name. The German Federal Court of Justice had in hands a case of trademark parody, in which the famous sports trademark Puma opposed the trademark parody Pudel. This court decided that there is an eminent risk in allowing the defense of trademark parodies, since their owners can profit with the similarity of their brands with the original ones, using the same to lure the attention of the consumers for their products that, without the existence of the original trademarks, would not be able to capture that attention.