July 24, 2015
Jdate, the popular dating service responsible for more Jewish hookups than a bottle of Manischewitz, is playing hardball in the dog-eat-dog world of nice Jewish match-making.
Jdate’s parent company, Spark Networks, discreetly filed a lawsuit late last year against Jswipe, the ‘Tinder for Jews’ dating app, claiming intellectual property over the letter “J” within the Jewish dating scene (the company refers to the branding as the “J-family”).
Additionally, Jdate claims it owns the patent on software that “confidentially determines matches and notifies users of mutual matches in feelings and interests.” Jswipe, like Tinder, notifies users when their romantic interest ‘swipes right’ on their picture, violating Jdate’s patent.
In other words, Jdate’s snap legal team managed to secure an intellectual property portfolio broader than the Grand Canyon, with potential copyright infringement claims over countless dating sites, many of which “confidentially” match singles.
So, why go after Jswipe, specifically, and not the entire online dating scene?
Jdate’s legal brief against Jswipe makes the case that dating sites which brand themselves with the “J-family” of names is violating Jdate’s trademark.
Yet, it’s hard to make the claim that it’s because Jswipe uses the letter “J”. There’s more Jewish apps that start with the letter “J” than New York school closings on Rosh Hashanah. Jcrush, Jwed, Jzoog are just a few of the Jewish dating apps on the market. And, it’s not just dating apps; there’s also the now defunct JVibe, a teeny-bop magazine for pubescent chosen people, which was established way back in 2004. ‘J-name’ in company branding seems as common as “berg” in Jewish last names.
Spark Networks refused to comment to the Ferenstein Wire on the pending suit, but the case appears to a bullying tactic to incentivize Jswipe to sell the company.
Jswipe Founder David Yarus confidentially confessed his legal troubles to me when we first met in Eden, Utah for a weekend gathering hosted by the convening group, Summit. Yarus is also forbidden from talking details, but 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.
“It is not unheard of to threaten some sort of IP litigation to “coerce” a company to come to the table for an acquisition”, explains intellectual property lawyer and candidate for California Senate, Christina Gagnier, “this could be considered an aggressive or unseemly strategy, but it is utilized.”
Is the lawsuit kosher?
While Jdate may have a tight legal case, the court of public Jewish opinion might be trickier. There is extensive biblical case law regarding competition between Jewish businesses, which is largely designed to protect small towns from economic civil war. Jewish law, for instance, might forbid an enterprising Jew from opening up a new matzah-making shop across the street from a fellow Jewish baker, because the first baker with the existing establishment could claim “You are destroying my livelihood” (as explained by the traditional Jewish text).
Traditional Jewish law prioritizes efficiency and community, especially for small towns, above the unforgiving capitalistic forces of creative destruction.
But, there are exceptions to rules forbidding competition between Jews. “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.
“Similarly, should one teacher of children come and open a schoolroom next to the place [where] a colleague [was teaching], so that other children will come to him or so that the children [studying under his] colleague shall come to him, his colleague may not lodge a protest against him”
Jewish scholars believed that competition between schools is good for future generations because “the envy of the teachers will increase knowledge”.
As this exception relates to competition between Jewish dating sites, “here we are talking about creating Jewish families that will have Jewish children. All the more so that we should encourage competition if the aggregate number of matches increases,” concludes Yaffe.
In other words, the existence of Jswipe (and other Jewish dating startups that use similar technology) increases the number of Jewish couples, which means more Jewish babies. And, as anyone will tell you who has listened to a Jewish mother talk to her children, there’s little more important to the Jewish community that making Jewish grandchildren.
It might have been a trickier issue in Jewish law if Jswipe had actually used Jdate’s logo — but they didn’t. American patent law has a different standard for trademark infringement.
So, does Jdate have a legal case?
Legally, Jdate might have a viable trademark and patent case against Jswipe, thanks to the quirky American intellectual property system.
Under the current IP regime, it is possible for Jdate to hold intellectual property over any software that discreetly matches two people based on their interests. This patent more or less covers every dating site on the Internet, and possibly many social network sites, which also use a secret algorithm to confidentially suggest “matches”.
When intellectual property lawyer Christina Gagnier first saw this patent, she described it to me as “way too broad. But, it was granted back in 1999, so I think that’s one of the problems with broad software patents.”
Super-broad software portfolios are often held simply as a weapon of preemption or intimidation, because they can instigate a settlement — even if a win in court is unlikely.
So, Jdate’s lawyers probably don’t have the matzah balls to actually file lawsuit against a well-funded dating site, such as Tinder or Okcupid, with an army of lawyers at their disposal. But, going after smaller startups, like Jswipe, is much easier, especially if a tiny company has to concede the case for purely financial reasons.
As for the trademark “J”, the American legal system has no bright line standard for proving whether the average consumer would confuse Jswipe as a side project of Jdate. Jdate would simply have to present whatever evidence they could find, including anecdotal testimonials, that indicate some consumers may have thought both apps were part of Spark Networks.
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. More importantly, Yarus and his team probably never imagined a user would confuse the two Jewish dating sites with one another. But, the current intellectual property system allows a giant like Jdate to hover over the industry with a broad, legally complex trademark portfolio and opportunistically wield it against potential competition.
Given the current legal landscape and Jdate’s reported desire to acquire them, Yarus and his team have set up an crowdfunding campaign to pay for their protracted legal costs (upwards of $500,000) and an email address to secure pro-bono legal help (firstname.lastname@example.org), in case there are any Jewish lawyers who want to fill their annual mitzvah quotient. I suspect Jswipe may find a few Jewish lawyers who do.
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