SWIPE LEFT Merely Descriptive of, and Fails-to-Function as a Source Indicator for, Matchmaking Software, Says TTAB

The Board upheld refusals to register the mark SWIPE LEFT for (1) "Downloadable software in the nature of a mobile application for internet-based dating and matchmaking" on the grounds of mere descriptiveness and failure-to-function, and (2) internet-based dating services on the ground of failure-to-function. Two expert surveys submitted by Applicant Tinder were of limited probative value and failed to demonstrate "that potential consumers understand the phrase 'swipe left' as a source [indicator] for Applicant’s goods or services." In re Tinder LLC, Serial Nos. 86608903 and 86680923 (May 2, 2025) [not precedential] (Opinion by Judge Mary Beth Myles).

Mere descriptiveness/the mobile app: The Board found the record "replete with evidence establishing that 'swipe left' has a clear meaning in the context of mobile applications, touchscreens or computers: it describes an action a user takes to navigate software." The evidence also supported Examining Attorney Kristen Z. Wu’s determination that "swipe left" is used "to describe the action taken in a mobile dating application such as Applicant’s to reject or express disinterest in a potential match."

Tinder argued that its two surveys (McDonald and Butler) show that "SWIPE LEFT already functions as a mark, in the sense that the majority of consumers currently associate the phrase and its use with Applicant and/or the TINDER® dating application rather than viewing the phrase as merely descriptive." The Board pointed out, however, that the subject application was based on intent-to-use, and there was no evidence in the record of any use of the mark with mobile apps. In its reply brief, Tinder switched gears, claiming that the McDonald survey was designed "to test the Examining Attorney’s factual conclusion" that "swipe left" is commonly used in everyday speech to convey rejection or disagreement. The Board noted that the McDonald Survey "is therefore more appropriately considered in connection with the failure to function."

In any event, the probative value of each of the surveys was limited. The McDonald Survey failed, for example, to include “any sort of ‘mini-course’ that would include a test of the understanding of the survey participants as to whether something functions as a mark."

While Applicant acknowledges that it has not yet used the term as a source identifier in connection with the applied-for goods, many respondents nevertheless “associated” the phrases “Swipe Right/Swipe Left” with a dating application such as TINDER®. If anything, this suggests that, while consumers have not been exposed to the phrase “swipe left” as a source indicator for a mobile dating application, they “associated” the phrase with mobile dating applications, because it describes a well-known action taken by consumers while using software such as Applicant’s TINDER® application.

The Butler survey was conducted in 2019, and so "[t]he probative value of the survey is therefore somewhat diminished by the passage of time." Moreover, the survey was designed to test acquired distinctiveness, not mere descriptiveness. Again, respondents were not provided with a mini-course regarding the concepts of distinctiveness or descriptiveness. Moreover, the fact that respondents "identify" the phrase "swipe left" with Tinder "does not suggest that respondents view the phrase as inherently distinctive." "Instead, it is at least equally likely that respondents 'identify' the phrase 'swipe left' with Applicant's dating service offerings, because it describes a gesture used to interact with Applicant’s application."

In conclusion, the Board had "no doubt" that SWIPE LEFT is merely descriptive of Tinder's mobile matchmaking app.

Failure-to-Function/mobile app and services: The Board observed that "mere descriptiveness" is one form of failure-to-function. The examining attorney also contended that the phrase “swipe left” has become a commonly used expression “to refer to rejection and conveys being disinterested” both in the field of dating and “colloquially … in other contexts." This latter form of failure-to-function applies "regardless of how it is actually used by Applicant."

The key issue was consumer perception of the proposed mark. The examining attorney provided five separate sources, including the MacMillan Dictionary, "all identifying swipe left' as having a similar meaning, i.e., to find unattractive or to reject." Numerous examples of third-party websites showed use of "swipe left" to mean rejecting someone as a potential romantic partner, and in "its more general sense in a variety of contexts, signifying use of the phrase to convey rejection." The phrase also appears ornamentally on various product unrelated to dating or matchmaking software or services.

The record here supports a finding that, notwithstanding Applicant’s claim to have coined the term, “swipe left” now conveys a widely-understood meaning of rejection both inside and outside the context of dating.

Relying again on its two surveys, Tinder argued that consumers “associate" the phrase with the Tinder app. The Board was unmoved: "the fact that respondents 'associate' the phrase with Applicant is not an indication that consumers view it as potentially source identifying." The Board found that "neither survey demonstrates that potential consumers understand the phrase 'swipe left' as a source of origin [source indicator? - ed.] for Applicant’s goods or services."

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TTABlogger comment: Tinder owns registrations for the mark SWIPE for mobile app software and for dating services. Its applications to register SWIPE RIGHT are on appeal to the Board but are suspended pending the outcome of this SWIPE LEFT appeal.

Text Copyright John L. Welch 2025.