Match Group, LLC v. Bumble Trading Inc.

Western District of Texas, txwd-6:2018-cv-00080

DEFENDANTS BUMBLE TRADING INC. AND BUMBLE HOLDING, LTDS ANSWER AND COUNTERCLAIMS TO PLAINTIFF MATCH GROUP, LLCS THIRD AMENDED COMPLAINT AND CROSSCLAIMS AGAINST IAC/INTERACTIVECORP.

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5 IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS WACO DIVISION MATCH GROUP, LLC, Plaintiff, v. BUMBLE TRADING INC. and BUMBLE HOLDING, LTD., Civil Action No. 6:18-cv-00080-ADA Defendants. JURY TRIAL BUMBLE TRADING INC. and BUMBLE HOLDING, LTD., Cross-Plaintiffs, v. MATCH GROUP, LLC and IAC/INTERACTIVECORP, Cross-Defendants. DEFENDANTS BUMBLE TRADING INC. AND BUMBLE HOLDING, LTD'S ANSWER AND COUNTERCLAIMS TO PLAINTIFF MATCH GROUP, LLC'S THIRD AMENDED COMPLAINT AND CROSSCLAIMS AGAINST IAC/INTERACTIVECORP Defendants Bumble Trading Inc. ("Bumble Trading") and Bumble Holding, Ltd. ("Bumble Holding," collectively with Bumble Trading, "Bumble") hereby files their answer ("Answer") to Plaintiff Match Group, LLC's ("Plaintiff" or "Match") Third Amended Complaint ("TAC"), and asserts Counterclaims set forth below, as well as Cross-Claims against IAC/InterActiveCorp ("IAC"). 5 BUMBLE'S ANSWER Each of the paragraphs below corresponds to the same numbered paragraph in the TAC. Bumble denies all allegations in the TAC, whether express or implied, that are not specifically admitted below. Bumble further denies that Plaintiff is entitled to the relief requested in the TAC, or to any other relief. Where an allegation is true as to Bumble Trading, but not Bumble Holding, or as to Bumble Holding, but not as to Bumble Trading, it is so indicated below. The "Introduction" to Match's TAC contains two pages of attorney argument rather than factual allegations requiring a response. To the extent a response is required, Bumble denies any allegations set forth in the unnumbered "Introduction" of the TAC. To the extent the descriptive headers in Match's TAC contain factual allegations requiring a response, Bumble denies any allegations set forth in the descriptive headers of the TAC. I. THE PARTIES 1. Bumble lacks sufficient knowledge or information to form a belief as to the truth of the allegations set forth in Paragraph 1 of the TAC, and therefore denies them. 2. Bumble Trading admits that Bumble Trading is a Delaware corporation with a principal place of business at 1105 W 41st St. Austin, TX 78756. 3. Bumble denies the allegations set forth in Paragraph 3 of the TAC. 4. Bumble denies the allegations set forth in Paragraph 4 of the TAC. 5. Bumble Holding admits that it is a corporation existing under the laws of the United Kingdom with a principal place of business in London, United Kingdom. II. JURISDICTION AND VENUE 6. Bumble denies that it has committed acts of patent infringement and/or induced or contributed to acts of patent infringement in the Western District of Texas, the State of Texas, or anywhere in the United States. For the purposes of this action, Bumble does not contest personal -2- 5 jurisdiction. Bumble admits that this Court has original jurisdiction over patent infringement and federal trade secret claims. Bumble Trading admits that its headquarters is located in Austin, Texas, but otherwise denies the remaining allegations set forth in Paragraph 6 of the TAC. Bumble Holding denies that its headquarters is located in Austin, Texas and otherwise denies the remaining allegations set forth in Paragraph 6 of the TAC. 7. Bumble denies that it has committed acts of infringement in this District or any other judicial district. For the purposes of this action, Bumble admits that venue is proper in the Western District of Texas. Bumble denies any remaining allegations set forth in Paragraph 7 of the TAC. 8. Bumble Trading admits that its principal place of business is in this district. Bumble Holding denies that its principal place of business is in this district. Bumble denies the remaining allegations in paragraph 8 of the TAC. 9. Bumble Trading admits that the Waco Federal Courthouse is less than 100 miles as the crow flies from its Austin-based headquarters. Bumble denies that the Waco Division of the Western District of Texas is convenient for Bumble. Bumble Holding denies that its principal place of business is within 100 miles of the Waco Federal Courthouse. Bumble lacks sufficient information to form a belief as to the truth of the remaining allegations set forth in Paragraph 9 of the TAC, and therefore denies them. 10. Bumble lacks sufficient information to form a belief as to the truth of the allegations set forth in Paragraph 10 of the TAC, and therefore denies them. 11. Bumble denies the allegations set forth in Paragraph 11 of the TAC. III. FACTUAL ALLEGATIONS 12. Bumble admits that Jonathan Badeen, Chris Gulczynski, Joe Munoz, Sean Rad, and Whitney Wolfe-Herd were a part of the Tinder team that conceived, designed, developed, and -3- 5 conducted initial marketing efforts for the Tinder app. Bumble lacks sufficient information to form a belief as to the truth of the remaining allegations set forth in Paragraph 12 of the TAC, and therefore denies them. 13. Bumble lacks sufficient information to form a belief as to the truth of the allegations set forth in Paragraph 13 of the TAC, and therefore denies them. 14. Bumble admits the allegations set forth in Paragraph 14 of the TAC. 15. Bumble lacks sufficient information to form a belief as to the truth of the allegations set forth in Paragraph 15 of the TAC, and therefore denies them. 16. Bumble lacks sufficient information to form a belief as to the truth of the allegations set forth in Paragraph 16 of the TAC, and therefore denies them. 17. Bumble lacks sufficient information to form a belief as to the truth of the allegations set forth in Paragraph 17 of the TAC, and therefore denies them. 18. Bumble admits that U.S. Patent No. 9,733,811 (the "'811" Patent") is entitled "Matching Process System and Method" and that a copy of this patent was attached to the TAC as Exhibit A. Bumble denies the remaining allegations set forth in Paragraph 18 of the TAC. 19. Bumble admits that U.S. Patent No. 9,959,023 ("the '023" Patent) on its face states an issue date of May 1, 2018 and is entitled "Matching Process System and Method." Bumble denies the remaining allegations set forth in Paragraph 19 of the TAC. 20. Bumble admits that U.S. Patent No. 10,203,854 ("the '854 Patent") on its face states an issue date of February 12, 2019 and is entitled "Matching Process System and Method." Bumble denies the remaining allegations set forth in Paragraph 20 of the TAC. 21. Bumble admits that there is a federally registered trademark, Reg. No. 4,465,926, for "swipe" and that Match purports to attach a copy of the registration as Exhibit D. Bumble -4- 5 lacks sufficient information to form a belief as to the truth of the remaining allegations set forth in Paragraph 21 of the TAC, and therefore denies them. 22. Bumble lacks sufficient information to form a belief as to the truth of the allegations set forth in Paragraph 22 of the TAC, and therefore denies them. 23. Bumble denies the allegations set forth in Paragraph 23 of the TAC. 24. Bumble denies the allegations set forth in Paragraph 24 of the TAC. 25. Bumble denies the allegations of Paragraph 25 of the TAC, except refers the Court to the text of the Telegraph article, which speaks for itself. 26. Bumble denies the allegations of Paragraph 26 of the TAC, except refers the Court to the text of the English Oxford Dictionary, which speaks for itself. 27. Bumble denies the allegations of Paragraph 27 of the TAC, except refers the Court to the text of the English Oxford Dictionary, which speaks for itself. 28. Bumble lacks sufficient information to form a belief as to the truth of the allegations set forth in Paragraph 28 of the TAC, and therefore denies them. 29. Bumble denies the allegations of Paragraph 29 of the TAC, except refers the Court to the text of the February 2014 article in TIME Magazine, which speaks for itself. 30. Bumble denies the allegations of Paragraph 30 of the TAC, except refers the Court to the text of the February 2015 article in CIO.com article, which speaks for itself. 31. Bumble denies the fame of the term "swipe right" in January 2015 and denies that Tinder holds, or has ever held, any trademark rights in the term "swipe right". Bumble lacks sufficient information to form a belief as to the truth of the remaining allegations set forth in Paragraph 31 of the TAC, and therefore denies them. 32. The allegations in Paragraph 32 of the TAC state a legal conclusion to which no -5- 5 response is required. To the extent a response is required, Bumble denies the allegations set forth in Paragraph 32 of the TAC. 33. Bumble lacks sufficient information to form a belief as to the truth of the allegations set forth in Paragraph 33 of the TAC, and therefore denies them. 34. Bumble lacks sufficient information to form a belief as to the truth of the allegations set forth in Paragraph 34 of the TAC, and therefore denies them. 35. Bumble lacks sufficient information to form a belief as to the truth of the allegations set forth in Paragraph 35 of the TAC, and therefore denies them. 36. Bumble lacks sufficient information to form a belief as to the truth of the allegations set forth in Paragraph 36 of the TAC, and therefore denies them. 37. Bumble denies the allegations set forth in Paragraph 37 of the TAC. 38. The allegations in Paragraph 38 of the TAC state a legal conclusion to which no response is required. To the extent a response is required, Bumble denies the allegations set forth in Paragraph 38 of the TAC. 39. The allegations in Paragraph 39 of the TAC state a legal conclusion to which no response is required. To the extent a response is required, Bumble denies the allegations set forth in Paragraph 39 of the TAC. 40. Bumble lacks sufficient information to form a belief as to the truth of the allegations set forth in Paragraph 40 of the TAC, and therefore denies them. 41. Bumble lacks sufficient information to form a belief as to the truth of the allegations set forth in Paragraph 41 of the TAC, and therefore denies them. 42. Bumble lacks sufficient information to form a belief as to the truth of the allegations set forth in Paragraph 42 of the TAC, and therefore denies them. -6- 5 43. Bumble admits that Whitney Wolfe-Herd co-founded and worked at Tinder and left after December of 2013. Bumble admits that it launched in December 2014. Bumble admits that Whitney Wolfe-Herd founded Bumble. Bumble lacks sufficient information to form a belief as to the effective date of Chris Gulczynski's and Sarah Mick's severance agreements with Tinder, and therefore denies those allegations. Bumble otherwise denies the remaining allegations set forth in Paragraph 43 of the TAC. 44. Bumble admits that Bumble is a mobile dating app, which for those seeking opposite gender relationships, requires the woman user to send the first message. Bumble otherwise denies the remaining allegations set forth in Paragraph 44 of the TAC. 45. Bumble denies the allegations of Paragraph 45 of the TAC, except refers the Court to the text of the referenced TechCrunch article, which speaks for itself. 46. Bumble denies the allegations of Paragraph 46 of the TAC, except refers the Court to the text of the referenced Texas Monthly article, which speaks for itself. 47. Bumble denies the allegations of Paragraph 47 of the TAC, except refers the Court to the text of the referenced BGR and Los Angeles Business Journal articles, which speaks for themselves. 48. Bumble admits that the two images on the right below Paragraph 48 appear to show the Bumble App, and refers the Court to the Bumble App, which speaks for itself. Bumble otherwise denies the remaining allegations set forth in Paragraph 48 of the TAC. 49. Bumble admits that the image on the right below Paragraph 49 appears to show the Bumble App, and refers the Court to the Bumble App, which speaks for itself. Bumble otherwise denies the remaining allegations set forth in Paragraph 49 of the TAC. 50. Bumble refers the Court to the Bumble App, which speaks for itself. Bumble -7- 5 otherwise denies the remaining allegations set forth in Paragraph 50 of the TAC. 51. Bumble denies the allegations set forth in Paragraph 51 of the TAC. 52. Bumble denies the allegations set forth in Paragraph 52 of the TAC. 53. Bumble denies the allegations set forth in Paragraph 53 of the TAC, except refers the Court to the screen images reproduced in Match's TAC, which speak for themselves. 54. Bumble denies the allegations set forth in Paragraph 54 of the TAC, except refers the Court to the screen images reproduced in Match's TAC, which speak for themselves. 55. Bumble lacks sufficient information to form a belief as to the truth of the allegations set forth in Paragraph 55 of the TAC, and therefore denies them. 56. Bumble denies the allegations set forth in Paragraph 56 of the TAC, except refers the Court to the screen images reproduced in Match's TAC, which speak for themselves. 57. Bumble denies the allegations set forth in Paragraph 57 of the TAC. 58. Bumble denies the allegations set forth in Paragraph 58 of the TAC, except refers the Court to the text of the "About Us" section of its website, which speaks for itself. 59. Bumble denies the allegations set forth in Paragraph 59 of the TAC, except refers the Court to the text in the third party app stores, which speaks for itself. 60. Bumble denies the allegations set forth in Paragraph 60 of the TAC, except refers the Court to the text of the Bumble website, which speaks for itself. 61. Bumble denies the allegations set forth in Paragraph 61 of the TAC, except refers the Court to "the Beehive" blog, which speaks for itself. 62. Bumble denies the allegations set forth in Paragraph 62 of the TAC, except refers the Court to the text of the "Frequently Asked Questions" section of the Bumble App, which speaks for itself. -8- 5 63. Bumble denies the allegations set forth in Paragraph 63 of the TAC, except refers the Court to Bumble's "backtrack" screen, which speaks for itself. 64. Bumble denies the allegations set forth in Paragraph 64 of the TAC, except refers the Court to the CNBC interview referenced in the TAC, which speaks for itself. 65. Bumble denies the allegations set forth in Paragraph 65 of the TAC, except refers the Court to the Fox Business interview referenced in the TAC, which speaks for itself. 66. Bumble denies the allegations set forth in Paragraph 66 of the TAC, except refers the Court to the CNN Money interview referenced in the TAC, which speaks for itself. 67. Bumble denies the allegations set forth in Paragraph 67 of the TAC, except refers the Court to Bumble's advertising, which speaks for itself. 68. Bumble denies the allegations set forth in Paragraph 68 of the TAC. 69. Bumble admits that the image below paragraph 69 appears to show a prior version of the Bumble App. Bumble otherwise denies the remaining allegations set forth in Paragraph 69 of the TAC. 70. Bumble refers the Court to the previous version of the Bumble screen referenced in the TAC, which speaks for itself. Bumble otherwise denies the allegations set forth in Paragraph 70 of the TAC. 71. Bumble refers the Court to the Bumble App which speaks for itself. Bumble otherwise denies the allegations set forth in Paragraph 71 of the TAC. 72. Bumble admits the "SuperSwipe" was added to the Bumble App as a paid feature in July 2017. FIRST CAUSE OF ACTION: INFRINGEMENT OF THE '811 PATENT BY BUMBLE 73. Bumble incorporates by reference its responses to the preceding paragraphs of the TAC as if fully set forth herein. -9- 5 74. Bumble denies the allegations set forth in Paragraph 74 of the TAC. 75. Paragraph 75 of the TAC states a legal conclusion to which no response is required. To the extent a response is required, Bumble refers the Court to the text of claim 1 of the '811 patent, which speaks for itself. 76. Paragraph 76 of the TAC states a legal conclusion to which no response is required. To the extent a response is required, Bumble refers the Court to the text of claim 4 of the '811 patent, which speaks for itself. 77. Paragraph 77 of the TAC states a legal conclusion to which no response is required. To the extent a response is required, Bumble refers the Court to the text of claim 7 of the '811 patent, which speaks for itself. 78. Bumble Holding admits that it is listed as the publisher of the Bumble App. Bumble otherwise denies the allegations in Paragraph 78 of the TAC. 79. Bumble denies the allegations set forth in Paragraph 79 of the TAC. 80. Bumble denies the allegations set forth in Paragraph 80 of the TAC, except refers the Court to the Frequently Asked Questions section on Bumble's Website, which speaks for itself. 81. Bumble denies the allegations set forth in Paragraph 81 of the TAC. 82. Bumble denies the allegations set forth in Paragraph 82 of the TAC. 83. Bumble denies the allegations set forth in Paragraph 83 of the TAC. 84. Bumble denies the allegations set forth in Paragraph 84 of the TAC. 85. Bumble denies the allegations set forth in Paragraph 85 of the TAC. 86. Bumble denies the allegations set forth in Paragraph 86 of the TAC. 87. Bumble denies the allegations set forth in Paragraph 87 of the TAC. 88. Bumble denies the allegations set forth in Paragraph 88 of the TAC. -10- 5 89. Bumble denies the allegations set forth in Paragraph 89 of the TAC. 90. Bumble denies the allegations set forth in Paragraph 90 of the TAC. 91. Bumble denies the allegations set forth in Paragraph 91 of the TAC. 92. Bumble denies the allegations set forth in Paragraph 92 of the TAC. 93. Bumble denies the allegations set forth in Paragraph 93 of the TAC. 94. Bumble denies the allegations set forth in Paragraph 94 of the TAC. 95. Bumble denies the allegations set forth in Paragraph 95 of the TAC. 96. Bumble denies that it was aware of the '811 Patent. Bumble lacks sufficient information to form a belief as to the remaining allegations set forth in Paragraph 96 of the TAC, and therefore denies them. 97. Bumble denies the allegations set forth in Paragraph 97 of the TAC, and refers the Court the Axios online publication, which speaks for itself. 98. Bumble lacks sufficient information to form a belief as to the allegations regarding a June 22, 2015 Adweek article, and therefore denies them. Bumble denies the remaining allegations set forth in Paragraph 98 of the TAC. 99. Bumble admits that Whitney Wolfe-Herd was working at Tinder in October 2013. Bumble lacks sufficient information to form a belief as to the allegations regarding Chris Gulczynski and Sarah Mick, and therefore denies them. Bumble otherwise denies the remaining allegations set forth in Paragraph 99 of the TAC. 100. Bumble denies the allegations set forth in Paragraph 100 of the TAC. 101. Bumble denies the allegations set forth in Paragraph 101 of the TAC. 102. Bumble denies the allegations set forth in Paragraph 102 of the TAC. 103. Bumble denies the allegations set forth in Paragraph 103 of the TAC. -11- 5 104. Bumble denies the allegations set forth in Paragraph 104 of the TAC. 105. Bumble denies the allegations set forth in Paragraph 105 of the TAC. 106. Bumble denies the allegations set forth in Paragraph 106 of the TAC. 107. Bumble denies the allegations set forth in Paragraph 107 of the TAC. 108. Bumble denies the allegations set forth in Paragraph 108 of the TAC. SECOND CAUSE OF ACTION: INFRINGEMENT OF THE '023 PATENT BY BUMBLE 109. Bumble incorporates by reference its responses to the previous paragraphs of the TAC as if fully set forth herein. 110. Bumble denies the allegations set forth in Paragraph 110 of the TAC. 111. Paragraph 111 of the TAC states a legal conclusion to which no response is required. To the extent a response is required, Bumble refers the Court to the text of claim 3 of the '023 patent, which speaks for itself. 112. Bumble Holding admits that it is listed as the publisher of the Bumble App. Bumble otherwise denies the allegations in Paragraph 112 of the TAC. 113. Bumble denies the allegations set forth in Paragraph 113 of the TAC. 114. Bumble denies the allegations set forth in Paragraph 114 of the TAC. 115. Bumble lacks information sufficient to form a belief about the truth of the allegations set forth in Paragraph 115 of the TAC and therefore denies them. 116. Bumble denies the allegations set forth in Paragraph 116 of the TAC. 117. Bumble denies the allegations set forth in Paragraph 117 of the TAC. 118. Bumble denies the allegations set forth in Paragraph 118 of the TAC. 119. Bumble denies the allegations set forth in Paragraph 119 of the TAC. 120. Bumble denies the allegations set forth in Paragraph 120 of the TAC. 121. Bumble denies the allegations set forth in Paragraph 121 of the TAC. -12- 5 122. Bumble denies the allegations set forth in Paragraph 122 of the TAC. 123. Bumble denies the allegations set forth in Paragraph 123 of the TAC. 124. Bumble denies the allegations set forth in Paragraph 124 of the TAC. 125. Bumble denies the allegations set forth in Paragraph 125 of the TAC. 126. Bumble denies the allegations set forth in Paragraph 126 of the TAC. 127. Bumble denies the allegations set forth in Paragraph 127 of the TAC. 128. Bumble denies the allegations set forth in Paragraph 128 of the TAC. 129. Bumble denies the allegations set forth in Paragraph 129 of the TAC. 130. Bumble denies the allegations set forth in Paragraph 130 of the TAC. 131. Bumble denies the allegations set forth in Paragraph 131 of the TAC. THIRD CAUSE OF ACTION: INFRINGEMENT OF THE '854 PATENT BY BUMBLE 132. Bumble incorporates by reference its responses to the previous paragraphs of the TAC as if fully set forth herein. 133. Bumble denies the allegations set forth in Paragraph 133 of the TAC. 134. Paragraph 134 of the TAC states a legal conclusion to which no response is required. To the extent a response is required, Bumble refers the Court to the text of claim 1 of the '854 patent, which speaks for itself. 135. Bumble Holding admits that it is listed as the publisher of the Bumble App. Bumble otherwise denies the allegations in Paragraph 135 of the TAC. 136. Bumble denies the allegations set forth in Paragraph 136 of the TAC. 137. Bumble denies the allegations set forth in Paragraph 137 of the TAC. 138. Bumble denies the allegations set forth in Paragraph 138 of the TAC. 139. Bumble denies the allegations set forth in Paragraph 139 of the TAC. -13- 5 140. Bumble denies the allegations set forth in Paragraph 140 of the TAC. 141. Bumble denies the allegations set forth in Paragraph 141 of the TAC. 142. Bumble denies the allegations set forth in Paragraph 142 of the TAC. 143. Bumble denies the allegations set forth in Paragraph 143 of the TAC. 144. Bumble denies the allegations set forth in Paragraph 144 of the TAC. 145. Bumble denies the allegations set forth in Paragraph 145 of the TAC. 146. Bumble denies the allegations set forth in Paragraph 146 of the TAC. 147. Bumble denies the allegations set forth in Paragraph 147 of the TAC. 148. Bumble denies the allegations set forth in Paragraph 148 of the TAC. 149. Bumble denies the allegations set forth in Paragraph 149 of the TAC. 150. Bumble denies the allegations set forth in Paragraph 150 of the TAC. 151. Bumble denies the allegations set forth in Paragraph 151 of the TAC. 152. Bumble denies the allegations set forth in Paragraph 152 of the TAC. 153. Bumble denies the allegations set forth in Paragraph 153 of the TAC. 154. Bumble denies the allegations set forth in Paragraph 154 of the TAC. 155. Bumble denies the allegations set forth in Paragraph 155 of the TAC. 156. Bumble denies the allegations set forth in Paragraph 156 of the TAC. 157. Bumble denies the allegations set forth in Paragraph 157 of the TAC. 158. Bumble denies the allegations set forth in Paragraph 158 of the TAC. 159. Bumble denies the allegations set forth in Paragraph 159 of the TAC. 160. Bumble denies the allegations set forth in Paragraph 160 of the TAC. 161. Bumble lacks sufficient information to form a belief as to the truth with respect to how "many users feel" and therefore denies this allegation. Bumble denies any remaining -14- 5 allegations set forth in Paragraph 161 of the TAC. 162. Bumble lacks sufficient information to form a belief as to the truth with respect to what "many users believe" and therefore denies this allegation. Bumble denies the remaining allegations set forth in Paragraph 162 of the TAC. 163. Bumble denies the allegations set forth in Paragraph 163 of the TAC. 164. Bumble denies the allegations set forth in Paragraph 164 of the TAC. 165. Bumble denies the allegations set forth in Paragraph 165 of the TAC. 166. Bumble denies the allegations set forth in Paragraph 166 of the TAC. 167. Bumble denies the allegations set forth in Paragraph 167 of the TAC. 168. Bumble denies the allegations of Paragraph 168 of the TAC, except refers the Court to the text of the Davidson College project, which speaks for itself. 169. Bumble denies the allegations of Paragraph 169 of the TAC, except refers the Court to the text of the growthhackers.com article, which speaks for itself. 170. Bumble denies the allegations of Paragraph 170 of the TAC, except refers the Court to the text of the innovationiseverywhere.com article, which speaks for itself. FOURTH CAUSE OF ACTION: TRADEMARK INFRINGEMENT UNDER 15 U.S.C. § 1114(a) 171. Bumble incorporates by reference its responses to the preceding paragraphs of the TAC as if fully set forth herein. 172. Responding to Paragraph 172 of the TAC, Bumble refers the Court to records available from the U.S. Patent and Trademark Office online database regarding U.S. Registration No. 4,465,926, which speak for themselves. As set forth below, Bumble denies that registration of the mark SWIPE is proper and denies any remaining allegations of Paragraph 172. 173. Bumble lacks sufficient information to form a belief as to the truth of the allegations -15- 5 set forth in Paragraph 173 of the TAC, and therefore denies them. 174. Bumble denies the allegations set forth in Paragraph 174 of the TAC. 175. Bumble denies the allegations set forth in Paragraph 175 of the TAC. 176. Bumble denies the allegations set forth in Paragraph 176 of the TAC. 177. Bumble denies the allegations set forth in Paragraph 177 of the TAC. FIFTH CAUSE OF ACTION: TRADEMARK INFRINGEMENT UNDER 15 U.S.C. § 1125(a) 178. Bumble incorporates by reference the preceding paragraphs as if fully set forth herein. 179. Bumble denies the allegations set forth in Paragraph 179 of the TAC. 180. Bumble denies the allegations set forth in Paragraph 180 of the TAC. 181. Bumble denies the allegations set forth in Paragraph 181 of the TAC. 182. Bumble denies the allegations set forth in Paragraph 182 of the TAC. 183. Bumble denies the allegations set forth in Paragraph 183 of the TAC. SIXTH CAUSE OF ACTION: INFRINGEMENT OF TRADE DRESS UNDER 15 U.S.C. § 1125(a) 184. Bumble incorporates by reference its responses to the preceding paragraphs of the TAC as if fully set forth herein. 185. Bumble denies the allegations set forth in Paragraph 185 of the TAC. 186. Bumble denies the allegations set forth in Paragraph 186 of the TAC. 187. Bumble denies the allegations set forth in Paragraph 187 of the TAC. 188. Bumble lacks sufficient information to form a belief as to the truth of the allegations set forth in Paragraph 188 of the TAC, and therefore denies them. 189. Bumble lacks sufficient information to form a belief as to the truth of the allegations set forth in Paragraph 189 of the TAC, and therefore denies them. -16- 5 190. Bumble denies the allegations set forth in Paragraph 190 of the TAC. 191. Bumble denies the allegations set forth in Paragraph 191 of the TAC. 192. Bumble lacks sufficient information to form a belief as to the truth of the allegations set forth in Paragraph 192 of the TAC, and therefore denies them. 193. Bumble lacks sufficient information to form a belief as to the truth of the allegations set forth in Paragraph 193 of the TAC, and therefore denies them. 194. Bumble lacks sufficient information to form a belief as to the truth of the allegations set forth in Paragraph 194 of the TAC, and therefore denies them. 195. Bumble denies the allegations set forth in Paragraph 195 of the TAC. 196. Bumble denies the allegations set forth in Paragraph 196 of the TAC. 197. Bumble denies the allegations set forth in Paragraph 197 of the TAC. 198. Bumble denies the allegations set forth in Paragraph 198 of the TAC. 199. Bumble denies the allegations set forth in Paragraph 199 of the TAC. 200. Bumble denies the allegations set forth in Paragraph 200 of the TAC. SEVENTH CAUSE OF ACTION: TRADEMARK DILUTION 201. Bumble incorporates by reference its responses to the preceding paragraphs of the TAC as if fully set forth herein. 202. Bumble denies the allegations set forth in Paragraph 202 of the TAC. 203. Bumble denies the allegations set forth in Paragraph 203 of the TAC. 204. Bumble lacks sufficient information to form a belief as to the truth of the allegations set forth in Paragraph 204 of the TAC, and therefore denies them. 205. Bumble lacks sufficient information to form a belief as to the truth of the allegations set forth in Paragraph 205 of the TAC, and therefore denies them. 206. Bumble lacks sufficient information to form a belief as to the truth of the allegations -17- 5 set forth in Paragraph 206 of the TAC, and therefore denies them. 207. Bumble denies the allegations set forth in Paragraph 207 of the TAC. 208. Bumble denies the allegations set forth in Paragraph 208 of the TAC. 209. Bumble denies the allegations set forth in Paragraph 209 of the TAC. 210. Bumble denies the allegations set forth in Paragraph 210 of the TAC. EIGHTH CAUSE OF ACTION: TEXAS UNFAIR COMPETITION 211. Bumble incorporates by reference its responses to the preceding paragraphs of the TAC as if fully set forth herein. 212. Bumble denies the allegations set forth in Paragraph 212 of the TAC. 213. Bumble denies the allegations set forth in Paragraph 213 of the TAC. 214. Bumble denies the allegations set forth in Paragraph 214 of the TAC. 215. Bumble denies the allegations set forth in Paragraph 215 of the TAC. 216. Bumble denies the allegations set forth in Paragraph 216 of the TAC. 217. Bumble denies the allegations set forth in Paragraph 217 of the TAC. NINTH CAUSE OF ACTION: MISAPPROPRIATION OF TRADE SECRETS UNDER THE DEFEND TRADE SECRETS ACT AND THE TEXAS UNIFORM TRADE SECRETS ACT 218. Bumble incorporates by reference its responses to the preceding paragraphs as if fully set forth herein. 219. Bumble lacks sufficient information to form a belief as to the truth of the allegations set forth in Paragraph 219 of the TAC, and therefore denies them. 220. Bumble lacks sufficient information to form a belief as to the truth of the allegations set forth in Paragraph 220 of the TAC, and therefore denies them. 221. Bumble lacks sufficient information to form a belief as to the truth of the allegations set forth in Paragraph 221 of the TAC, and therefore denies them. -18- 5 222. Bumble lacks sufficient information to form a belief as to the truth of the allegations set forth in Paragraph 222 of the TAC, and therefore denies them. 223. Bumble lacks sufficient information to form a belief as to the truth of the allegations set forth in Paragraph 223 of the TAC, and therefore denies them. 224. Bumble admits that its "Backtrack" feature was implemented in March of 2015 and refers the Court to the Bumble website, which speaks for itself. Bumble otherwise denies the remaining allegations set forth in Paragraph 224 of the TAC. 225. Bumble lacks sufficient information to form a belief as to the truth of the allegations relating to the timing of the announcement of and the functionality of Tinder's "rewind" feature, and therefore denies them. Bumble otherwise denies the remaining allegations set forth in Paragraph 225 of the TAC. 226. Bumble lacks sufficient information to form a belief as to the truth of the allegations set forth in Paragraph 226 of the TAC, and therefore denies them. 227. Bumble refers the Court to the Bumble App, which speaks for itself. Bumble otherwise denies the remaining allegations set forth in Paragraph 227 of the TAC. 228. Bumble denies the allegations set forth in Paragraph 228 of the TAC. 229. Bumble denies the allegations set forth in Paragraph 229 of the TAC. 230. The allegations in Paragraph 230 of the TAC state a legal conclusion to which no response is required. To the extent a response is required, Bumble denies the allegations set forth in Paragraph 230 of the TAC. 231. Bumble denies the allegations set forth in Paragraph 231 of the TAC. 232. Bumble denies the allegations set forth in Paragraph 232 of the TAC. 233. Bumble lacks sufficient information to form a belief as to the truth of the allegations -19- 5 set forth in Paragraph 233 of the TAC, and therefore denies them. 234. Bumble lacks sufficient information to form a belief as to the truth of the allegations set forth in Paragraph 234 of the TAC, and therefore denies them. 235. Bumble lacks sufficient information to form a belief as to the truth of the allegations set forth in Paragraph 235 of the TAC, and therefore denies them. 236. Bumble lacks sufficient information to form a belief as to the truth of the allegations set forth in Paragraph 236 of the TAC, and therefore denies them. 237. Bumble denies the allegations set forth in Paragraph 237 of the TAC, except that Bumble refers the Court to its App, which speaks for itself. 238. Bumble denies the allegations set forth in Paragraph 238 of the TAC. 239. Bumble denies the allegations set forth in Paragraph 239 of the TAC. 240. Bumble denies the allegations set forth in Paragraph 240 of the TAC. 241. Bumble lacks sufficient information to form a belief as to the truth of the allegations set forth in Paragraph 241 of the TAC with respect to what Match believes to know or not know, and therefore denies them. Bumble denies the implication of the allegations set forth in Paragraph 241 without qualification. 242. Bumble denies the allegations set forth in Paragraph 242 of the TAC. 243. Bumble denies the allegations set forth in Paragraph 243 of the TAC. RESPONSE TO PRAYER FOR RELIEF 244. Bumble incorporates by reference all preceding paragraphs of this Answer as if fully set forth herein. Bumble denies that Plaintiff is entitled to any relief whatsoever, including but not limited to the relief sought in Paragraphs 1 through 9, including all subparagraphs, of the Prayer for Relief of the TAC. -20- 5 DEMAND FOR JURY TRIAL 245. Plaintiff's demand for a trial by jury does not require a response by Bumble. AFFIRMATIVE DEFENSES Pursuant to Federal Rule of Civil Procedure 8(c), and without altering any applicable burdens of proof, Bumble asserts the following defenses to the TAC and reserves their rights to assert additional defenses. FIRST AFFIRMATIVE DEFENSE – NON-INFRINGEMENT 246. Bumble does not infringe and has not infringed, literally or under the doctrine of equivalents, and either directly or indirectly, any valid claim of the '811, '023, and '854 patents. SECOND AFFIRMATIVE DEFENSE – PATENT INVALIDITY 247. One or more claims of the '811, '023, and '854 patents are invalid for failure to satisfy one or more of the conditions of patentability specified in Title 35 of the United States Code, including without limitation §§ 101, 102, 103, 112, and/or 171. THIRD AFFIRMATIVE DEFENSE – PROSECUTION HISTORY ESTOPPEL 248. Plaintiff is barred or limited from recovery, in whole or in part, by the doctrine of prosecution history estoppel. FOURTH DEFENSE – NO WILLFULNESS 249. Plaintiff is barred from obtaining a finding of willfulness or receiving enhanced damages because it has failed to allege reprehensible culpability on the part of Bumble, which is prerequisite for a finding of willfulness and an award of enhanced damages. FIFTH AFFIRMATIVE DEFENSE – FAILURE TO STATE A CLAIM 250. Plaintiff's Complaint fails to state a claim upon which relief can be granted. SIXTH AFFIRMATIVE DEFENSE – LIMITATION ON DAMAGES 251. Plaintiff is barred or limited in recovery, in whole or in part, by failing to meet the -21- 5 requirements of 35 U.S.C. §§ 286, 287, and/or 288. SEVENTH AFFIRMATIVE DEFENSE – EQUITABLE DEFENSES 252. Plaintiff's claims are barred, in whole or in part, by estoppel, acquiescence, waiver, unclean hands, and/or other equitable defenses. Match has engaged in misleading conduct based upon which Bumble reasonably inferred that Match was making no claim to Bumble technology or otherwise asserting any intellectual property rights. Further, to the extent Match believed that it Bumble was infringing Match's intellectual property rights or misappropriating Match's trade secrets, Match has known of those claims and engaged in conduct inconsistent with those rights and/or inexcusably delayed asserting such rights to the prejudice of Bumble, with such prejudice including among other things the significant investment Bumble has made in building its brand and associated goodwill. Lastly, Match's conduct has been misleading, unconscientious, unjust, and marked by a want of good faith. Permitting Match to pursue its claims would cause significant harm to Bumble. EIGHTH AFFIRMATIVE DEFENSE – NO VALID TRADEMARK OR TRADEDRESS 253. Match has no valid, protectable marks or trade dress in which it enjoys any rights that may be asserted against Bumble. NINTH AFFIRMATIVE DEFENSE – LACHES 254. Plaintiff's trademark and trade dress claims are barred, in whole or in part, by the doctrine of laches because Plaintiff unreasonably delayed in asserting its purported rights in its alleged trademarks and trade dress despite, on information and belief, having knowledge of Bumble's activities since at least as early as December 2014, Plaintiff's delay is inexcusable and has caused Bumble undue prejudice. TENTH AFFIRMATIVE DEFENSE – FAIR USE 255. Plaintiff's trademark infringement claims are barred because Bumble used, fairly -22- 5 and in good faith, the descriptive terms "SWIPE," "SWIPE RIGHT," and "SWIPE LEFT" to accurately identify a common touchscreen gesture used to operate the Bumble app. As such, Bumble did not infringe Plaintiff's alleged trademark rights in the generic, or at least highly descriptive, terms "SWIPE," "SWIPE RIGHT," and "SWIPE LEFT." ELEVENTH AFFIRMATIVE DEFENSE – NON-DISTINCTIVE TRADE DRESS 256. Plaintiff's trade dress claims are barred because Plaintiff's claimed trade dress consists of product design, which lacks inherent distinctiveness, and has not acquired secondary meaning. TWELVETH AFFIRMATIVE DEFENSE – FUNCTIONALITY 257. Plaintiff's trade dress claims are barred because Plaintiff's alleged trade dress claims consist of functional elements. THIRTEENTH AFFIRMATIVE DEFENSE – GENERIC TERMS 258. The claims made in the Complaint and the relief sought therein are barred, in whole or in part, on the basis that the marks and alleged trade dress at issue are generic. FOURTEENTH AFFIRMATIVE DEFENSE – THIRD-PARTY USE 259. The claims made in the Complaint are barred, in whole or in part, by reason of other parties' use of any trademarks or trade dress at issue. FIFTEENTH AFFIRMATIVE DEFENSE – NO LIKELIHOOD OF CONFUSION 260. Plaintiff's trademark and trade dress-based claims are barred because Bumble's use of any Plaintiff-owned trademarks or trade dress is not likely to cause confusion, deception or mistake among customers as to the source, association or affiliation of either party's goods and services. -23- 5 SIXTEENTH AFFIRMATIVE DEFENSE – STATUTE OF LIMITATIONS 261. Plaintiff's trade secret misappropriation claim is barred by the statute of limitations. SEVENTEENTH AFFIRMATIVE DEFENSE – NO INDEPENDENT ECONOMIC VALUE 262. Plaintiff's misappropriation of trade secrets claim is barred because Plaintiff's purported trade secret does not derive independent economic value from not being known. EIGHTEENTH AFFIRMATIVE DEFENSE – READILY ASSERTAINABLE 263. Plaintiff's misappropriation of trade secrets claim is barred because Plaintiff's purported trade secret was readily ascertainable by proper means. NINTEENTH AFFIRMATIVE DEFENSE – INAPPLICABILITY OF DTSA 264. The Defense of Trade Secrets Act is inapplicable to allegations of trade secrets misappropriation based on activities occurring before its enactment on May 11, 2016. TWENTIETH AFFIRMATIVE DEFENSE – NO INJUNCTIVE RELIEF 265. Plaintiff's demand to enjoin Bumble is barred, at least because Plaintiff has suffered neither harm nor irreparable harm from Bumble's actions. TWENTY-FIRST AFFIRMATIVE DEFENSE – PROSECUTION LACHES 266. Plaintiff is barred or limited from recovery, in whole or in part, by the doctrine of prosecution laches. OTHER AFFIRMATIVE DEFENSES 267. Bumble reserves all other affirmative defenses pursuant to Rule 8(c) of the Federal Rules of Civil Procedure, the Patent Laws of the United States, and any other defenses, at law or in equity, that now exist or in the future may be available based on discovery and further factual investigation in this case. -24- 5 BUMBLE'S COUNTERCLAIMS AND CROSS-CLAIMS Bumble Trading and Bumble Holding assert the following counterclaims against Match and cross-claims against IAC. PARTIES 1. Bumble Trading is corporation organized under the laws of Delaware having its principal place of business located at 1105 W. 41st St., Austin, Texas 78756. 2. Bumble Holding is a corporation organized under the laws of the United Kingdom having its principal place of business in London, United Kingdom. 3. Match is a limited liability corporation organized under the laws of Delaware, with its principal place of business located at 8750 N. Central Expressway, Suite 1400, Dallas, Texas. 4. IAC is a corporation organized under the laws of the State of Delaware, with its principal place of business in New York, New York. IAC is Match's parent company. JURISDICTION AND VENUE 5. Counterclaims 1-6 arise under the Lanham Act, 15 U.S.C. § 1119. Counterclaims 7-10 arise under the Patent Act 35 U.S.C. § 101 et seq. This Court has jurisdiction over the subject matter of these Counterclaims under 15 U.S.C. § 1121 and 28 U.S.C. §§ 1331, 1338. The Court has supplemental jurisdiction over Counterclaims 11-15 under 15 U.S.C. § 1367. 6. On information and belief, this Court has personal jurisdiction over Match because, among other reasons, Match has its principal place of business in Texas. Further, by filing their Complaint in this judicial district, Match has submitted to this Court's personal jurisdiction over Match. 7. On information and belief, this Court has personal jurisdiction over IAC because, among other reasons, IAC is Match's parent and IAC is registered with the State of Texas. On -25- 5 information and belief, IAC has extensive other operations and contacts in the State of Texas and in this district. 8. On information and belief, venue is proper in this judicial district pursuant because by filing its Complaint, Match has consented that this Court is a proper venue for this litigation. Furthermore, Match and IAC have committed the acts giving rise to liability alleged herein, in large part in this district. FACTUAL BACKGROUND REGARDING BUMBLE'S COUNTERCLAIMS Bumble & Swipe Functionality 7. Bumble is the developer of the world-renowned social networking and dating app BUMBLE. 8. In 2014, Whitney Wolfe, a co-founder of Tinder, established Bumble out of a desire to redefine the mobile dating concept in a manner that was safe and empowering for women. 9. Bumble users swipe left to indicate "no" and swipe right to indicate "yes" when viewing profiles of potential partners. If there is a match, Bumble then notifies both users. On Bumble, however, only the women users can begin a conversation with a potential partner. The match will automatically expire if the woman user has not started a conversation within 24 hours of the occurrence of the match. 10. Bumble's ethos and innovation has been rewarded with enormous success. According to the New York Times, as of March 2017, Bumble had more than "800 million matches and 10 billion swipes per month." Today, the platform enjoys a user base of over 46 million individuals. Counterclaim-Defendant Match Group, LLC 11. Upon information and belief, Match is among the largest online dating companies -26- 5 in the world, with a portfolio of online dating services and mobile apps that includes Tinder, OkCupid, and Match.com. 12. Upon information and belief, Match has primarily achieved its market position through an aggressive acquisition strategy. Over the past nine years, Match has completed more than 25 acquisitions, including acquisitions of the popular dating services PlentyOfFish and OKCupid. 13. Along with Bumble and others such as Hot or Not, Hily, and Blendr, Tinder has helped to popularize the online social introduction format whereby users swipe among photos of other users to select those with whom the user wants to connect. 14. As a part of its efforts to control the online dating market, Match ostensibly sought to purchase Bumble in 2017. 15. After Bumble rebuffed Match's overtures, Match filed the Complaint against Bumble alleging, among other things, infringement of Match's alleged trademark SWIPE and variations thereof. Match purports to use the terms "swipe," "swipe right," "swipe left," and other variations of "swipe" as trademarks in connection with the Tinder app. The Registration of the Purported "SWIPE" Trademark 16. Upon information and belief, Match launched the Tinder app in September 2012. See Exhibit 1. The initial version of the Tinder app required users to tap on digital buttons to indicate a like or dislike of another user. Upon information and belief, Tinder first replaced use of buttons with swiping in the fall of 2012. See Exhibit 2. 17. Upon information and belief, on June 5, 2013, Match's predecessor-in-interest Chirpme, Inc. ("Chirpme") filed Application Serial No. 85/950,991 for the purported trademark SWIPE in connection with "computer application software for mobile devices, namely, software -27- 5 for social introduction and dating services" in International Class 9 (the "SWIPE Application"). 18. As set forth in detail below, the term "swipe" is the generic term for a touchscreen gesture, whereby an individual moves his or her finger across the screen. See Exhibits 3-4. 19. Upon information and belief, at the time the SWIPE Application was filed, Chirpme was using "SWIPE" as the name of a mobile application that enabled users to locate and chat with other users nearby. Upon information and belief, Chirpme's application, like Tinder and Bumble, functioned by showing users photographs of other nearby users, which could then be swiped to the left (indicating a lack of interest in the user photo) or the right (indicating an interest in the user photo). Accordingly, the "SWIPE" name referred to the touchscreen gesture, which was how users interacted with the app. 20. Upon information and belief, on or about December 30, 2013, Chirpme entered into an agreement whereby it purported to assign its rights in "SWIPE," including the SWIPE Application, to Speeddate.com, LLC. 21. Upon information and belief on January 14, 2014, the SWIPE Application matured to Registration No. 4,465,926 (the "Registration"). 22. Upon information and belief, on or about February 24, 2015, Speeddate.com LLC entered into an agreement whereby it purported to assign its rights in "SWIPE," including the Registration, to Tinder, Inc. 23. Upon information and belief, on or about July 13, 2017, Tinder, Inc. completed a merger with Match Group, Inc., which subsequently purported to assign its rights in "SWIPE," including the Registration, to Match. -28- 5 Match's Pending Applications for "SWIPE"-Formative Marks 24. Upon information and belief, on or about April 24, 2015, Match filed Application Serial Nos. 86/608,899 and 86/608,903 for, respectively, the purported trademarks SWIPE RIGHT and SWIPE LEFT in connection with "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, namely, for sending status updates to subscribers of web feeds, uploading and downloading electronic files to share with others" in International Class 9. 25. Bumble is informed and believes, and on that basis alleges, that on August 12, 2015, Application Serial Nos. 86/608,899 and 86/608,903 were refused registration on the ground that "[SWIPE RIGHT and SWIPE LEFT] merely describes a feature of [Match's] goods." In addition, prior-filed Application Serial Nos. 86/363,987 and 86/363,993 for the mark JSWIPE, 86/439,621 for the mark CHRISTIAN SWIPE, and 86/366,708 for the mark SWIPEQ (collectively the "Cited Applications"), all of which covered dating app related offerings, were cited as potential bars to registration of the applications due to likelihood of confusion. Application Serial Nos. 86/608,899 and 86/608,903 were suspended on February 15, 2016 pending the registration or abandonment of the Cited Applications. 26. Upon information and belief, on or about July 1, 2015, Match filed Application Serial Nos. 86/680,914, 86/680,923, and 86/680,927, for, respectively, the purported trademarks SWIPE, SWIPE LEFT, and SWIPE RIGHT in connection with "dating services; internet-based social networking, introduction and dating services" in International Class 45. 27. Bumble is informed and believes, and on that basis alleges, that on August 12, 2015, Application Serial Nos. 86/680,914, 86/680,923, and 86/680,927 were suspended pending the registration or abandonment of the Cited Applications. -29- 5 28. Upon information and belief, on or about July 1, 2015, Match filed Application Serial No. 86/680,938 for the purported trademark SWIPE RIGHT in connection with "clothing, namely, tops, bottoms, head wear and footwear" in International Class 25. This application received a Notice of Allowance on August 2, 2016 and remains pending. 29. Upon information and belief, on or about September 9, 2015, Match filed Application Serial No. 86/751,974 for the purported trademark SWIPE UP in connection with "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, namely, for sending status updates to subscribers of web feeds, uploading and downloading electronic files to share with others" in International Class 9. 30. Bumble is informed and believes, and on that basis alleges, that on October 15, 2015, Application Serial No. 86/751,974 was refused registration on the ground that "[SWIPE UP] merely describes a feature of [Match's] goods and/or services." Match responded to this refusal on April 15, 2016, alleging that the purported mark SWIPE UP is inherently distinctive. However, on May 4, 2016, the PTO maintained its refusal to register the purported mark SWIPE UP on the ground that the term is merely descriptive. In addition, the PTO again cited Application Serial Nos. 86/363,987, 86/366,708, and 86/363,993 as potential bars to registration of the purported SWIPE UP mark. 31. Upon information and belief, on or about January 3, 2018, Match filed Application Serial No. 87/742,144 for the purported trademark SWIPE RIGHT, which remains pending in connection with "entertainment services; production and distribution and exhibition of digital video and audio content; entertainment services in the nature of a continuing series of television -30- 5 programs provided through broadcast, cable, the Internet, streaming video-on-demand, and other forms of transmission media" in International Class 41. 32. Upon information and belief, on or about September 27, 23018, Match filed Application Serial No. 88/134,879 for the purported trademark SWIPE LIFE in connection with "providing customized on-line web pages and data feeds featuring information on dating, matchmaking, relationships, entertainment, social issues, beauty, current events, events and popular culture which includes blog posts, new media content, other on-line content, and on-line web links to other websites" in International Class 42. 33. Upon information and belief, on or about October 18, 23018, Match filed Application Serial Nos. 88/160,784 and 88/160,907 for the purported trademarks SWIPE SESSIONS and SWIPE SESSIONS & Design in connection with "entertainment services; educational and entertainment services, namely, programs accessible by means of Internet streaming, video on demand, web-based applications, mobile phone applications, computer networks, and other forms of transmission media; entertainment, namely, live music concerts, arranging and conducting of concerts." in International Class 41 and "Dating services; Internet- based dating, social introduction, and social networking services; providing a web site featuring information in the fields of personal relationships, dating, and fashion" in International Class 45. The Common Use of "SWIPE" by Third Parties 34. Upon information and belief, the term "swipe," and variations thereof, as used by Match and its predecessors-in-interest has never functioned as a trademark or source identifier. 35. For example, touchscreen designers and manufacturers have long used the term "swipe" to refer to the common touchscreen gesture. In fact, a press release dated August 21, 2006 from Synaptics Incorporated, a publicly traded touchscreen supplier for Apple Inc. among others, -31- 5 referenced "swiping" while identifying gestures for its new touchscreen technology. Exhibit 5. Similarly, in Steve Jobs' keynote speech at MacWorld 2007, during which the first iPhone was announced, Jobs repeatedly used the term "swipe" to refer to the touchscreen gesture while demonstrating how to switch between digital photos in the iPhone photo app. 36. Since the introduction of the iPhone to the public, swiping has been as ubiquitous as touchscreens. In the manual accompanying one of Samsung's first touchscreen phones in 2008, the term "swipe" was used to identify how users scroll through the phone's widget bar. Exhibit 6. By at least as early as 2011, "swiping" was regularly identified alongside other common touchscreen gestures in smartphone manuals, for example those published by Samsung (Exhibit 7) and HTC (Exhibit 8). 37. Swiping has been especially common in connection with mobile gaming software. For example, since 2010 the popular game Fruit Ninja has used the term "swipe" to indicate how users play the game. See Exhibit 9. Prominent game designer and author Scott Rogers even wrote a book published in June 2012 with the title "swipe this!" in reference to the touchscreen gesture. See Exhibit 10. 38. Upon information and belief, "swipe" remains in widespread use to refer to the common touchscreen gesture across computer hardware and software industries. For example, Apple's iPhone software developer guidelines identify "swipe" as a "standard gesture" that "work[s] the same across the [iOS] system and in every app." Exhibit 11. -32- 5 39. Likewise, the iPhone User Guide lists "swipe" as among the "few simple gestures" used "to control iPhone and its apps." Exhibit 12. 40. Similarly, the User Manual for the recently released Samsung Galaxy S9 lists "swipe" as a common touchscreen navigation gesture alongside "tap," "double-tap," "drag," and others. Exhibit 13. -33- 5 41. Upon information and belief, the combined share of Apple and Samsung in the U.S. smartphone market was approximately 78% at the time the Samsung Galaxy S9 was released in March 2018. 42. Upon information and belief, swiping on touchscreens has even been the subject of research papers. See e.g., Exhibit 14. 43. Notwithstanding the common understanding of "swipe" in the mobile app and smartphone industries, Match maintains that the Registration is valid and that Match owns exclusive rights to the terms "SWIPE," "SWIPE RIGHT," "SWIPE LEFT," and variations thereof, in connection with mobile dating software and related services. Match's Negotiations with Bumble 44. In the summer of 2017, Match and Bumble began negotiations for Match's potential acquisition of Bumble. Match made an offer in June 2017 that was too low for Bumble to accept. Negotiations continued through the fall. On December 21, 2017, Match informed Bumble that it would not make a further offer and the negotiations between Match and Bumble -34- 5 ended. 45. Bumble moved on to other potential investors and, by January 2018, Bumble was entertaining offers for a possible acquisition or investment. These other investors made considerably more attractive offers than Match had previously, and Bumble was in serious negotiations to close on a deal. 46. Match learned of these other offers and understood that if Bumble consummated a transaction it would be to Match's competitive detriment. Match and its parent company, IAC, devised a plan. They would misleadingly state that Match had renewed interested in exploring an acquisition, but this time at a much more competitive price point. Match and IAC would use the promise of a superior offer to delay Bumble from closing a deal with another investor. But these representations would all be false and/or misleading, as Match had no bona fide intention of making a market-value offer. 47. Match and IAC engaged in a sham negotiation with Bumble to prevent Bumble from completing a transaction with another company. Executives at Match and IAC made a litany of false and misleading statements to Bumble's negotiating team during January and February 2018. Match and IAC went to remarkable lengths to create the impression that a highly desirable offer from Match was imminent. Match requested ever more sensitive business information as part of its phony "due diligence" and promised consideration of the deal at an upcoming board meeting. High-ranking officers, including the CEOs of both Match and IAC, discussed the supposed acquisition plans with Bumble representatives. Match's CEO even went so far as to dine (on February 22, 2018) with the CEO of Bumble to repeat and confirm Match's ongoing and purportedly genuine interest. 48. But the promised offer from Match was always just around the corner. Bumble's -35- 5 negotiating team eventually grew frustrated that no specific offer ever materialized. By the time Bumble's team came to realize that the entire negotiation had been a sham, it was too late as Bumble had missed the opportunity to close a deal with other investors. 49. Bumble believes that absent this well-orchestrated campaign of deceit by Match, Bumble would have moved forward with another transaction. Match and IAC intentionally prevented just that. Match's Initial Offer 50. Recognizing that the Bumble platform occupied an important place in the market for social applications, Match sought in the summer of 2017 to acquire Bumble. 51. Match made its first overture in June 2017, when it offered $450 million in cash to acquire the Bumble platform. Within two months, news of the offer hit the press. The media noted that the offer was unattractive. Forbes published an article stating that its sources "suggested the $450 million offer was seen to undervalue Bumble, which has quickly set itself apart in a crowded market with its 'women-first' branding and functionality. . . ." TechCrunch also reported that sources viewed the value of Bumble at over $1 billion. Match's stock price rose around this time, likely as an intentional result of the news (it presumably had leaked) that it had approached Bumble. 52. Believing that Match was acting in good faith, Bumble invited Match's CEO and CFO to visit and tour its Austin offices on November 21, 2017 and Match accepted the invitation. The two companies' senior executives met and communicated repeatedly, with the understanding that a possible acquisition was in the works. 53. In December 2017, after confidentially receiving the due diligence data it had requested, Match candidly acknowledged that its earlier offer had been too low. Match's team -36- 5 indicated that it had revised its views, and disclosed its new view of Bumble's valuation, which was now materially higher than the $450 million it had initially offered. Match promised that it would soon provide an increased offer consistent with its revised view of Bumble's valuation. 54. As the parties continued to negotiate, however, Match came to realize Bumble's true valuation was too high for Match to afford and Match could not make a compelling offer that Bumble would accept. On December 21, 2017, Match's CFO, Gary Swidler, emailed the CFO of Bumble's parent to state that Match would not be making any further offers. With that, the negotiations for an acquisition came to a close. Or so Bumble thought. Match and IAC's Scheme to Prevent the Acquisition of Bumble by a Third Party 55. In January 2018, Bumble began negotiating a possible acquisition or other strategic transaction with other investors. Three private equity firms made attractive offers to Bumble at valuations far in excess of what Match last committed to and two digital media companies were also contemplating offers (collectively, the "Potential Investors"). Some of these negotiations matured into concrete bids. The identities of these Potential Investors, the valuations their offers implied, and the terms that were reached during these negotiations are not public information and Bumble is contractually obligated to maintain the confidentiality of much of this information. Accordingly, Bumble will disclose this information as required to the Court and opposing counsel under an appropriate protective order. 56. Match and IAC learned that Bumble had made significant headway in negotiating with the Potential Investors and was getting close to closing a deal in early 2018. Match and IAC understood that if any such deal was consummated, it would be to Match's (and therefore IAC's) detriment as a competitor of Bumble and Bumble would either receive a substantial cash infusion or other resources enabling it to become a stronger, and therefore more -37- 5 effective, competitor in the common market in which the companies actively compete. Knowing as much, Match and IAC devised a plan to prevent and/or disrupt Bumble's sale to, or transaction with, any of the Potential Investors. 57. Match falsely represented that it was again interested in acquiring Bumble, this time at a highly attractive valuation. During the approximately eight weeks from January 15, 2018 through March 17, 2018, Match and IAC officers made a series of false or misleading statements to this effect. Bumble was interested in receiving such offers because Bumble thought that Match held a bona fide good faith interest in having business discussions and that Match might prove to be the best actor with which to consummate a strategic transaction. Indeed, Bumble encouraged Match to consider reigniting the earlier acquisition discussions, oblivious to any concerns that Match might use resumed discussions as a way to hobble Bumble's ability to create an auction-like process to ensure that any transaction would fetch the highest possible market value. 58. Unbeknownst to Bumble, what ensued was a pattern of behavior and course of dealing by Match in which it dragged out the negotiations, misleadingly promising that a desirable offer was just around the corner, in order to discourage Bumble from closing a deal with any of the Potential Investors. 59. Match officers repeatedly asked about the deals Bumble was considering with the Potential Investors, including the identity of the investors and the timetable and the amount of the bids. Match's CFO Gary Swidler stated his strong support for a deal on multiple occasions and asked Bumble's officers to keep him apprised of ongoings in the negotiations with other bidders. 60. In truth, Match's negotiations were not made in good faith, and Match masked -38- 5 the falsity and misleading nature of its statements that it intended to make a market-value offer. Match never intended to make such an offer. 61. Bumble relied on Match's false and misleading statements made during the course of these negotiations and, as a proximate result, did not close a deal with any of the Potential Investors during this period—as Match had intended. Specifically, Bumble relied on the following representations: 62. During the week of January 15, 2018, Swidler represented to Bumble's representatives at JPMorgan Chase ("JPMorgan") that Match required specific sensitive business information in connection with its interest in revising its offer. 63. On or about January 26, 2018, the CEO of IAC, Joey Levin, told Bumble's team at JPMorgan that IAC would support an acquisition in which Match would acquire Bumble for shares in Match or Tinder. 64. On or about January 30, 2018, Swidler told JPMorgan that Match would make an attractive offer to acquire Bumble in the next few days. 65. On February 9, 2018, rather than make a specific offer, Swidler indicated a range for the possible valuation of the acquisition—and demanded more information from Bumble regarding performance and user metrics and financial data, supposedly so Match could narrow this range to a specific valuation. In this way, Match kept Bumble's interest, as the upper bound of the indicated range was attractive, but avoided actually committing to a specific offer that could be consummated. Bumble provided the requested information. 66. On or about February 12, 2018, JPMorgan raised concerns about the vague nature of Match's offer and noted that offers from the Potential Investors were both better and more specific. Swidler assuaged these concerns, again expressing Match's interest in a deal. -39- 5 67. On or about February 15, 2018, Levin explained to JPMorgan that Match and IAC strongly desired additional due diligence so Match would be able to make a more concrete offer. 68. On February 19, 2018, Swidler sent a massive request for confidential data regarding marketing, financials, and monetization, supposedly required for Match to make a specific offer. 69. On February 20, 2018, Swidler requested still more confidential due diligence information regarding marketing efforts, user statistics, and revenue statistics in a conversation with JPMorgan. JPMorgan explained that with the information would come with an expectation that Match would make a specific offer within two weeks. Swidler explained that an acquisition bid would be discussed at Match's upcoming board meeting and a specific proposal would be provided as soon as practically possible after that. 70. Bumble provided another round of particularly sensitive business information on February 21, 2018 based on this representation. Such information included, without limitation: information regarding marketing, user registration, user behavior, revenue statistics, and other performance, financial, and monetization metrics. 71. On February 21, 2018, Swidler emailed with Chris Grose, at JPMorgan, suggesting his interest in an in-person meeting with Grose and the CFO of Bumble's parent company, Idan Wallichman, to discuss the acquisition. 72. On February 22, 2018, Match CEO Mandy Ginsberg had dinner with Bumble CEO Whitney Wolfe. During this dinner, Ginsberg continued to represent that Match was on the cusp of making a competitive offer to acquire Bumble. Ginsberg expressed excitement about -40- 5 the potential transaction. 73. On February 23, 2018, Swidler sent yet another request for confidential due diligence information, this time for highly sensitive strategic information. Swidler emailed an extensive list of requests asking for a range of metrics and other specific data, including playbook information for future marketing and product plans. Bumble attempted to comply with much of the request and provided each of these data types with the exception of the requested sensitive strategic information regarding future product and marketing plans. 74. On February 26, 2018 (at 8:52 p.m. local time), Swidler texted Wallichman requesting additional confidential information in preparation for the Match board meeting. Swidler said that he would make "some adjustments to [his] model and get close to done" with a revised bid proposal for the Match board. 75. On February 28, 2018 (at 1:40 p.m. local time), Swidler told Wallichman in an email that Match was having an internal discussion about the proposed acquisition and would update Wallichman "shortly." 76. No update or bid ever came. Instead, Match's officers went silent. Match and IAC's Deception Revealed 77. Each of these representations made by Swidler, Levin, and Ginsberg were false and misleading. Match and IAC did not have a bone fide good faith intention to acquire Bumble after December 2017. The negotiations, requests for additional confidential information, and assurances that a deal was in the making were all part of a scheme to string Bumble along to the point where other parties, including the Potential Investors, would lose their interest in pursuing a strategic transaction or acquisition of Bumble. The purpose of these representations was to convince Bumble not to accept another offer. Ultimately, Match never made any specific offer— -41- 5 it never had intended to do so. By relying on Match's expressions of interest, Bumble lost the ability to bring any other party (including the Potential Investors) to the negotiating table to conclude a transaction of the type that was possible when Match resumed negotiations with Bumble – a result that Bumble believes is precisely what Match was aiming for. 78. Match and IAC's plan worked exactly as intended. Bumble relied on Swidler, Levin, and Ginsberg's nearly continuous representations that an offer was coming and did not consummate actionable offers from the other Potential Investors. Bumble reasonably believed that Match and IAC's representations were truthful and that Match was in fact preparing a competitive offer, as it had represented. This cost Bumble dearly as Match's deception caused Bumble to miss out on viable offers from the Potential Investors. 1 Had Bumble not been misled by Match and IAC, it would have moved forward with another offer from the Potential Investors in early 2018. FIRST CAUSE OF ACTION Asserted Against Match (Cancellation of Registration No. 4,465,926) 79. Bumble incorporates by reference Paragraphs 1 through 78, inclusive as if fully set forth herein. 80. Upon information and belief, Match and its predecessors-in-interest have used the purported SWIPE mark in connection with mobile dating apps that are expressly designed around the touchscreen gesture of moving one's finger across the screen. 81. Upon information and belief, Match and its predecessors-in-interest use the term "swipe" and variations thereof to identify the touchscreen gesture. 82. Upon information and belief the following image was used in app stores to promote and explain the "SWIPE" app, which was the original subject of the SWIPE Application: -42- 5 Upon information and belief this exact image also appears in the specimen associated with the Registration; but the text "you can also swipe to 'Like' or 'Pass'" is obscured in the specimen by a menu. 83. Similarly, the following is a screenshot of the iTunes page for the Tinder app as it appeared in September 2014, in which Tinder explains "Swipe right to like or left to pass": -43- 5 84. Upon information and belief, more recently Match has taken to capitalizing the terms "Swipe," "Swipe Right," and "Swipe Left" in its marketing collateral in a futile effort to obscure the non-distinctive nature of the term "swipe." For example, the following image is a screenshot of the iTunes page for the Tinder app as of May 2018: 85. Capitalizing the terms "Swipe," "Swipe Right," and "Swipe Left" does not change their meaning, however. Match's uses of "swipe" and its variations still refer to the touchscreen gesture even when capitalized. 86. Upon information and belief, following Bumble's initiation of Cancellation No. 91245055 before the U.S. Patent & Trademark Office Trademark Trial and Appeal Board on August 28, 2018, seeking cancellation of the Registration, Match has begun using a "TM" symbol in conjunction with the terms "Swipe Right" and "Swipe Left." The following image is a screenshot of the iTunes page for the Tinder app as of January 2019: -44- 5 87. Adding a trademark symbol to the terms "Swipe Right" and "Swipe Left" does not transform them into trademarks. Match's uses of "swipe" and its variations still refer to the touchscreen gesture even when adorned with a trademark symbol. 88. Upon information and belief, since well prior to the filing of the SWIPE Application and Match's first use of the term "swipe," countless third party software and hardware developers have used the term "swipe" other than as a trademark to identify the common touchscreen gesture. See e.g., Exhibits 5-13. 89. Upon information and belief, the relevant purchasing public understands the word "swipe" to be the common term or class name for the touchscreen gesture of moving one's finger across the screen. See Exhibits 3-14. 90. Accordingly, the term "swipe" as used by Match is generic, cannot function as a source identifier, and therefore cannot be entitled to registration. 91. Alternatively, even if Match's purported SWIPE mark is not generic, it is merely descriptive and has not become distinctive of Match's goods in commerce. -45- 5 92. The U.S. Patent & Trademark Office allowed Match to register the SWIPE mark less than five years ago. The Registration is thus susceptible to cancellation because the term "swipe" is merely descriptive of the goods identified in the Registration and lacks secondary meaning. 93. Upon information and belief, the relevant consuming public understands that the term "swipe" in the context of mobile applications, including mobile applications for social introduction and dating services, refers to the touchscreen gesture, as opposed to an indication of source. Accordingly, Match has not acquired secondary meaning in the purported SWIPE mark for the goods in the Registration. 94. The Registration confers upon Match a presumption of Match's exclusive right to use the purported SWIPE mark, all to the detriment of Bumble and others in the mobile app industry generally, and in the online dating industry in particular. 95. Match has asserted the Registration against Bumble in the Complaint, claiming trademark infringement among other allegations. 96. Accordingly, Bumble has been harmed and believes it will continue to be harmed by the continued registration of the purported SWIPE mark in connection with the goods identified in the Registration. 97. Upon information and belief, the Registration will also interfere with the right of others in the mobile app and online dating industries to accurately identify the common touchscreen gesture. 98. The Registration is therefore in violation of 15 U.S.C. §§ 1052 and 1064 because the term "swipe" is the generic word for the touchscreen gesture at the heart of the user interface -46- 5 for Match's software, or is at least merely descriptive of a characteristic of Match's software and lacks secondary meaning. Accordingly, the Registration should be cancelled. SECOND CAUSE OF ACTION Asserted Against Match (Denial of Registration for Application Serial Nos. 86/608,899, 86/608,903, 86/680,914, 86/680,923, 86/680,927, and 86/751,974) 99. Bumble incorporates by reference Paragraphs 1 through 78, inclusive as if fully set forth herein. 100. Upon information and belief, all of these goods and services covered by Application Serial Nos. 86/608,899, 86/608,903, 86/680,914, 86/680,923, 86/680,927, and 86/751,974 concern mobile dating apps that are expressly designed around the touchscreen gesture of moving one's finger across the screen. 101. When used on or in connection with the applicable goods and services set forth in these applications, the purported trademarks SWIPE, SWIPE LEFT, SWIPE RIGHT, and SWIPE UP are reasonably understood by consumers to refer to the common touchscreen gesture that is used to operate Match's dating software and services. 102. Upon information and belief, the purported trademarks SWIPE, SWIPE LEFT, SWIPE RIGHT, and SWIPE UP are not inherently distinctive, and have not become distinctive of Match's goods and services. Match has not acquired secondary meaning in the purported marks for its goods and services. 103. Issuance of registrations in connection with Application Serial Nos. 86/608,899, 86/608,903, 86/680,914, 86/680,923, 86/680,927, and 86/751,974 will interfere with the rights of Bumble and others affiliated with the mobile application industry, in particular those in the field of online dating, to communicate to consumers how to use a touchscreen to operate mobile applications and corresponding services. -47- 5 104. Issuance of registrations in connection with Application Serial Nos. 86/608,899, 86/608,903, 86/680,914, 86/680,923, 86/680,927, and 86/751,974 would therefore violate 15 U.S.C. § 1052 because the marks are generic, or at least merely descriptive, of the goods and services covered by the applications. THIRD CAUSE OF ACTION Asserted Against Match (Denial of Registration for Application Serial No. 86/680,938) 105. Bumble incorporates by reference Paragraphs 1 through 78, inclusive as if fully set forth herein. 106. Upon information and belief, Match intends to use the purported trademark SWIPE RIGHT in connection with the clothing items covered by Application Serial No. 86/680,938. 107. Upon information and belief, Match's use of the purported trademark SWIPE RIGHT on clothing items would be merely decorative. 108. For the reasons set forth above, Match has not acquired secondary meaning in the purported trademark SWIPE RIGHT. Accordingly, SWIPE RIGHT does not function as a secondary source indicator for Match in connection with clothing items. 109. Issuance of registrations in connection with Application Serial No. 86/680,938 will interfere with the rights of Bumble and others affiliated with the mobile application industry to market their mobile applications and corresponding services using the common industry term "swipe," and variations thereof.. 110. Because SWIPE RIGHT would be merely ornamental when used by Match in connection with clothing items, Application Serial No. 86/680,938 should be refused registration under 15 U.S.C. § 1052. -48- 5 FOURTH CAUSE OF ACTION Asserted Against Match (Denial of Registration for Application Serial No. 87/742,144) 111. Bumble incorporates by reference Paragraphs 1 through 78, inclusive as if fully set forth herein. 112. Upon information and belief, Application Serial No. 87/742,144 covers entertainment services related to mobile dating apps that are expressly designed around the touchscreen gesture of moving one's finger across the screen. 113. Upon information and belief, the purported trademark SWIPE RIGHT is not inherently distinctive, and has not become distinctive of Match's current or planned entertainment services. Match has not acquired secondary meaning in the purported mark for such services. 114. Application Serial No. 87/742,144 will interfere with the rights of Bumble and others affiliated with the mobile application industry, in particular those in the field of online dating, to communicate to consumers how to use a touchscreen to operate mobile applications and corresponding services. 115. Issuance of registrations in connection with Application Serial No. 87/742,144 would therefore violate 15 U.S.C. §§ 1052 and 1053 because SWIPE RIGHT is merely descriptive of the subject matter of the entertainment services covered by the application. FIFTH CAUSE OF ACTION Asserted Against Match (Denial of Registration for Application Serial No. 88/134,879) 116. Bumble incorporates by reference Paragraphs 1 through 78, inclusive as if fully set forth herein. 117. Upon information and belief, Application Serial No. 88/134,879 covers web services related to mobile dating apps that are expressly designed around the touchscreen gesture -49- 5 of moving one's finger across the screen. Specifically, the application is intended to cover the blogging services and online content provided through Match's "SWIPE LIFE" section of the www.tinder.com website. 118. Bumble is informed and believes, and on that basis alleges, that the term "SWIPE" in "SWIPE LIFE" refers to the common touchscreen gesture of moving one's finger across the screen. 119. Upon information and belief, the term "LIFE" in "SWIPE LIFE" refers to the lives and life experiences of those who use Match's mobile dating application. 120. Match's combination of the generic, or at least merely descriptive, term "SWIPE" with the descriptive term "LIFE" merely describes the subject matter of Match's online blogging and content services. 121. Upon information and belief, the purported SWIPE LIFE mark is merely descriptive and has not become distinctive of Match's online blogging and content services. Upon information and belief, Match has not acquired secondary meaning in the purported mark for such services. 122. Application Serial No. 88/134,879 will interfere with the rights of Bumble and others affiliated with the mobile application industry, in particular those in the field of online dating, to communicate to consumers how to use a touchscreen to operate mobile applications and corresponding services. 123. Issuance of registrations in connection with Application Serial No. 88/134,879 would therefore violate 15 U.S.C. §§ 1052 and 1053 because SWIPE LIFE is merely descriptive of the services covered by the application. -50- 5 SIXTH CAUSE OF ACTION Asserted Against Match (Denial of Registration for Application Serial Nos. 88/160,784 and 88/160,907) 124. Bumble incorporates by reference Paragraphs 1 through 78, inclusive as if fully set forth herein. 125. Upon information and belief, Application Serial Nos. 88/160,784 and 88/160,907 cover online dating services, entertainment services, and online content services concerning mobile dating apps that are expressly designed around the touchscreen gesture of moving one's finger across the screen. Among other things, the applications are intended to cover the online video content provided through Match's "SWIPE SESSIONS" section of the www.tinder.com website. These videos feature discussions and interviews about the Tinder app. 126. Bumble is informed and believes, and on that basis alleges, that the term "SWIPE" in "SWIPE SESSIONS" refers to the common touchscreen gesture of moving one's finger across the screen. 127. Upon information and belief, the term "SESSIONS" in "SWIPE SESSIONS" refers to a period of discussion about the Tinder app, such as the discussions featured in each "SWIPE SESSION" video currently available on www.tinder.com. 128. Match's combination of the generic, or at least merely descriptive, term "SWIPE" with the descriptive term "SESSIONS" merely describes Match's online dating services and the subject matter of Match's entertainment services and online content services. 129. Upon information and belief, the purported SWIPE SESSIONS mark is merely descriptive and has not become distinctive of Match's online dating services, entertainment services, and online content services. Upon information and belief, Match has not acquired secondary meaning in the purported mark for such services. -51- 5 130. Application Serial Nos. 88/160,784 and 88/160,907 will interfere with the rights of Bumble and others affiliated with the mobile application industry, in particular those in the field of online dating, to communicate to consumers how to use a touchscreen to operate mobile applications and corresponding services. 131. Issuance of registrations in connection with Application Serial Nos. 88/160,784 and 88/160,907 would therefore violate 15 U.S.C. §§ 1052 and 1053 because SWIPE SESSIONS is merely descriptive of the services covered by the applications. SEVENTH CAUSE OF ACTION Asserted Against Match (Non-Infringement of the '811 Patent) 132. Bumble incorporates its allegations in Counterclaim Paragraphs 1 through 78, inclusive, as if fully set forth herein. 133. Match claims to be the owner by assignment of the '811 Patent. 134. Match has accused Bumble of infringement of the '811 Patent. Match has therefore created a substantial, immediate, and real controversy between the parties as to the infringement of the '811 Patent. 135. Bumble has not infringed and currently does not infringe any asserted claim of the '811 Patent directly, indirectly, by inducement, or in any other manner. 136. Bumble does not have dating applications nor related servers that meet at least the following limitations of claim 1 of the '811 Patent:  "electronically receiving a first request for matching, the first request electronically submitted by a first user using a first electronic device;"  "determining a set of potential matches from the plurality of user online-dating profiles for the first user in response to receiving the first request;"  "determining that the first user expressed a positive preference indication regarding the first potential match at least by determining that the first user -52- 5 performed a first swiping gesture associated with the graphical representation of the first potential match on the graphical user interface;"  "in response to determining to enable initial communication between the first user and the second user, causing the graphical user interface to display to the first user the graphical representation of the first potential match;"  "determining that the first user expressed a negative preference indication regarding a third potential match of the set of potential matches at least by determining that the first user performed a second swiping gesture associated with a graphical representation of the third potential match on the graphical user interface, the second swiping gesture different than the first swiping gesture, the third potential match corresponding to a third user;"  "determining that the first user expressed a positive preference indication regarding a fourth potential match of the set of potential matches at least by determining that the first user performed the first swiping gesture associated with a graphical representation of the fourth potential match on the graphical user interface, the fourth potential match corresponding to a fourth user." 137. Bumble does not have dating applications nor related servers that meet at least the following limitations of claim 4 of the '811 Patent:  "electronically receive a first request for matching, the first request electronically submitted by a first user using a first electronic device;"  "determine a set of potential matches from the plurality of user online dating profiles for the first user in response to receiving the first request;"  "determine that the first user expressed a positive preference indication regarding the first potential match at least by determining that the first user performed a first swiping gesture associated with the graphical representation of the first potential match on the graphical user interface;"  "determine that the second user has expressed a positive preference indication regarding the first user after determining that the first user expressed the positive preference indication regarding the first potential match;"  "in response to the determination to enable initial communication between the first user and the second user, cause the graphical user interface to display to the first user the graphical representation of the first potential match;  determine that the first user expressed a negative preference indication regarding a third potential match of the set of potential matches at least by determining that the first user performed a second swiping gesture associated -53- 5 with a graphical representation of the third potential match on the graphical user interface, the second swiping gesture different than the first swiping gesture, the third potential match corresponding to a third user;"  "determine that the first user expressed a positive preference indication regarding a fourth potential match of the set of potential matches at least by determining that the first user performed the first swiping gesture associated with a graphical representation of the fourth potential match on the graphical user interface, the fourth potential match corresponding to a fourth user." 138. Bumble does not have dating applications nor related servers that meet at least the following limitations of claim 7 of the '811 Patent:  "determine a set of potential matches from the plurality of user online-dating profiles for the first user in response to receiving the first request;"  "determine that the interface has received a positive preference indication from the first user regarding the first potential match at least by determining that the first user performed a first swiping gesture associated with the graphical representation of the first potential match on the graphical user interface;"  "determine that the second user has expressed a positive preference indication regarding the first user after determining that the first user expressed the positive preference indication regarding the first potential match; and"  "in response to the determination to enable initial communication between the first user and the second user, cause the graphical user interface to display to the first user the graphical representation of the first potential match;"  "determine that the first user expressed a positive preference indication regarding a fourth potential match of the set of potential matches at least by determining that the first user performed the first swiping gesture associated with a graphical representation of the fourth potential match on the graphical user interface, the fourth potential match corresponding to a fourth user; and"  prevent communication between the first user and the fourth user in response to determining that the fourth user has expressed a negative preference indication regarding the first user." 139. Match is entitled to no relief as Bumble does not infringe the '811 Patent. -54- 5 EIGHTH CAUSE OF ACTION Asserted Against Match (Non-Infringement of the '023 Patent) 140. Bumble incorporates by reference Paragraph 1 through 78, inclusive, as if fully set forth herein. 141. Match claims to be the owner by assignment of the '023 Patent. 142. Match has accused Bumble of infringement of the '023 Patent. Match has therefore created a substantial, immediate, and real controversy between the parties as to the infringement of the '023 Patent. 143. Bumble has not infringed and currently does not infringe any asserted claim of the '023 Patent directly, indirectly, by inducement, or in any other manner. 144. Bumble does not have dating applications nor related servers that meet at least the following limitations of claim 3 of the '023 Patent:  "detect a gesture associated with the graphical representation of the first item of information, the gesture corresponding to a positive preference indication associated with the first item of information, the positive preference indication associated with the first item of information comprising an expression of approval for the first user associated with the first online dating profile, wherein the processor is further operable to detect a right swiping direction associated with the gesture;"  "store the positive preference indication associated with the first item of information in response to detecting the gesture; and"  "automatically present a graphical representation of a second item of information of the plurality of items of information in response to the processor detecting the gesture, the second item of information comprising a graphical representation of a second online dating profile associated with a second user; and"  "automatically remove the graphical representation of the first item of information in response to detecting the gesture." 145. Match is entitled to no relief as Bumble does not infringe the '023 Patent. -55- 5 NINTH CAUSE OF ACTION Asserted Against Match (Non-Infringement of the '854 Patent) 146. Bumble incorporates by reference Paragraph 1 through 78, inclusive, as if fully set forth herein. 147. Match claims to be the owner by assignment of the '854 Patent. 148. Match has accused Bumble of infringement of the '854 Patent. Match has therefore created a substantial, immediate, and real controversy between the parties as to the infringement of the '854 Patent. 149. Bumble has not infringed and currently does not infringe any asserted claim of the '854 Patent directly, indirectly, by inducement, or in any other manner. 150. Bumble does not have dating applications nor related servers that meet at least the following limitations of claim 1 of the '854 Patent:  "electronically receiving a first request for matching, the first request electronically submitted by a first user using a first electronic device;"  "determine from the plurality of user online-dating profiles a set of potential matches for the first user;"  "receive from the first electronic device of the first user a first positive preference indication associated with the graphical representation of the second user on the graphical user interface, the first positive preference indication associated with a first gesture performed on the graphical user interface, wherein the first gesture comprises a first swiping gesture;"  "determine to allow the first user to communicate with the second user in response to receiving from the first electronic device of the first user the first positive preference indication regarding the second user and receiving from the second electronic device of the second user the positive preference indication regarding the first user;"  "receive from the first electronic device of the first user a first negative preference indication associated with a graphical representation of a third potential match on the graphical user interface, the first negative preference indication associated with a second gesture performed on the graphical user -56- 5 interface, the third potential match corresponding to a third user, wherein the second gesture comprises a second swiping gesture different than the first swiping gesture;"  "without allowing communication between the first user and the third user, receive from the first electronic device of the first user a second positive preference indication associated with a graphical representation of a fourth potential match on the graphical user interface, the second positive preference indication associated with the first gesture performed on the graphical user interface, the fourth potential match corresponding to a fourth user;"  "without allowing communication between the first user and the fourth user, receive from the first electronic device of the first user a third positive preference indication associated with a graphical representation of a fifth potential match on the graphical user interface, the third positive preference indication associated with the first gesture performed on the graphical user interface, the fifth potential match corresponding to a fifth user." 151. Match is entitled to no relief as Bumble does not infringe the '854 Patent. TENTH CAUSE OF ACTION Asserted Against Match (Invalidity of the '811, '023, and '854 Patents) 152. Bumble incorporates by reference Paragraphs 1 through 78, inclusive, as if fully set forth herein. 153. Match contends that the asserted claims of the '811, '023, and '854 Patents are valid and enforceable. Match has therefore created a substantial, immediate, and real controversy between the parties as to the invalidity of the asserted claims of the '811, '023, and '854 Patents. 154. Each asserted claim of the '811, '023, and '854 Patents is invalid for failure to comply with one or more provisions of 35 U.S.C. §§ 101, 102, 103, and/or 112. 155. The claims of the '811, '023, and '854 Patents are, for example, patent ineligible under 35 U.S.C. § 101 because they are directed to the abstract concepts of matchmaking and picking certain cards out of a stack. -57- 5 156. In particular, the asserted claims of the '811 and '854 Patents attempt to monopolize the fundamental economic practice of connecting people with potential matches based on mutual attraction or not connecting them in the absence of mutual attraction. As claimed in the '811 and '854 Patents, this longstanding business practice is carried out on the Internet by generic computers including handheld electronic devices. 157. The '023 Patent merely claims performing the abstract concept of looking through a stack of dating match profile cards one at a time and expressing interest in a match by moving a card to the right on a generic processing device. The claims do not address or solve any unique technological problem to overcome their abstract nature. 158. Bumble's Invalidity Contentions, as served on Plaintiff on March 22, 2019, describe exemplary prior art references that render each and every asserted claim of the '811 Patent invalid. 159. Bumble's Invalidity Contentions, as served on Plaintiff on March 22, 2019, describe exemplary prior art references that render each and every asserted claim of the '023 Patent invalid. 160. Bumble's Invalidity Contentions, as served on Plaintiff on March 22, 2019, describe exemplary prior art references that render each and every asserted claim of the '854 Patent invalid. 161. Match is entitled to no relief as the '811 Patent, '023, and '854 Patents are invalid. ELEVENTH CAUSE OF ACTION Asserted Against Match and IAC (Fraud) 162. Bumble repeats and re-alleges each and every allegation set forth in Paragraphs 1 through 78 above as if fully set forth herein. 163. Representatives of Match and IAC made false and misleading representations to -58- 5 Bumble to delay Bumble's acceptance of an offer from any of the Potential Investors. These representations, as specified herein, were false because Match never intended to acquire Bumble after December 2017. 164. When Match made these representations, it knew the representations were false (or, at minimum, made them recklessly without knowing if they were true). Match also intended that Bumble rely on the representations, which Bumble did, to Bumble's detriment. 165. Bumble's reliance was reasonably justified. 166. Match's false material representations caused Bumble injury. Bumble is therefore entitled to recover all damages permitted by law or equity. 167. Match's conduct was malicious, deliberate, fraudulent, and willful, or in the alternative, at least grossly negligent. 168. Match's fraud has caused damage to Bumble in an amount to be determined at trial. TWELFTH CAUSE OF ACTION Asserted Against Match and IAC (Negligent Misrepresentation) 169. Bumble repeats and re-alleges each and every allegation set forth in Paragraphs 1 through 78 above as if fully set forth herein. 170. Representatives of Match and IAC made false and misleading representations to Bumble. 171. These representations, as specified herein, were made in the course of Match and IAC's business. 172. These representations were made for the guidance of Bumble's business, as they were intended to cause Bumble to avoid consummating a deal with any of the Potential Investors. -59- 5 173. These representations, as specified herein, were false because Match never intended to acquire Bumble after December 2017. 174. When Match and IAC made these representations, they did not exercise reasonable care in providing the communicated information or determining its truth. 175. Bumble relied on these representations to its detriment. Bumble's reliance was reasonably justified. 176. Match and IAC's negligence has caused damage to Bumble in an amount to be determined at trial. THIRTEENTH CAUSE OF ACTION Asserted Against Match and IAC (Unfair Competition) 177. Bumble repeats and re-alleges each and every allegation set forth in Paragraphs 1 through 78 above as if as if fully set forth herein. 178. Match and IAC committed one or more unlawful and tortious acts by making false representations to Bumble. 179. As a direct result of Match and IAC's unlawful and tortious conduct, Bumble has been injured. 180. This conduct constitutes unfair competition. 181. Match and IAC's unfair competition has caused damage to Bumble in an amount to be determined at trial. FOURTEENTH CAUSE OF ACTION Asserted Against Match and IAC (Promissory Estoppel) 182. Bumble repeats and re-alleges each and every allegation set forth in Paragraphs 1 through 78 above as if as if fully set forth herein. -60- 5 183. Representatives of Match and IAC made representations that Match would make a specific and attractive offer to acquire Bumble during January and February 2018, as specified herein. 184. Match and IAC never intended to make an offer and, instead, used this pretext to cause Bumble to delay accepting an offer from another Potential Investor. 185. Match and IAC made false representations to Bumble and did not exercise reasonable care or competence in obtaining the information. Match and IAC were intentional, or, at the bare minimum, negligent or grossly negligent when making the representations. 186. It was reasonably foreseeable to Match and IAC that Bumble would rely on these promises. 187. Bumble substantially relied on Match and IAC's promises. 188. Match and IAC's false promises have caused damage to Bumble in an amount to be determined at trial. FIFTHTEENTH CAUSE OF ACTION Asserted Against Match and IAC (Interference with Prospective Business Relations) 189. Bumble repeats and re-alleges each and every allegation set forth in Paragraphs 1 through 78 above as if as if fully set forth herein. 190. There was a reasonable probability that Bumble would have entered into an acquisition or similar transaction with one of the Potential Investors. 191. Match and IAC acted with a conscious desire to prevent this from happening, or at a minimum knew that that their conduct would interfere with such a closing. 192. Match and IAC's conduct was independently tortious for the reasons specified herein. 193. Match and IAC's conduct proximately caused Bumble actual damage and loss. -61- 5 BUMBLE'S PRAYER FOR RELIEF WHEREFORE, Bumble prays this Court enter judgment: A. In favor of Bumble and against Match, thereby dismissing Match's Complaint in its entirety, with prejudice, with Match taking nothing by way of its claims; B. That Bumble has not infringed, contributorily infringed, or induced the infringement of any valid claim of the '811, '023, and '854 Patents; C. That all asserted claims of the '811, '023, and '854 Patents are invalid and/or unenforceable; D. That Bumble has not infringed any trademark or trade dress rights alleged by Match; E. That U.S. Trademark Registration No. 4,465,926 is invalid and unenforceable; F. That the trade dress rights claimed by Match are unenforceable due to a lack of both inherent distinctiveness and acquired distinctiveness, and/or because the elements of the claimed trade dress are merely functional; G. That Bumble has not misappropriated any trade secrets from Match; H. That the Court decree and order cancellation of Match's U.S. Registration No. 4,465,926 for the alleged mark SWIPE, and certify said decree and order to the Director of the USPTO under 15 U.S.C. § 1119; I. That the Court issue an injunction prohibiting Match from obtaining trademark registrations in connection with Application Serial Nos. 86/608,899, 86/608,903, 86/680,914, 86/680,923, 86/680,927, 86/680,938, 87/742,144, 88/134,879, 88/160,784 and 88/160,907, and order Match to expressly abandon the applications, in whole or in part, under 15 U.S.C. §§ 1052 and 1053. -62- 5 J. That the Court issue an injunction prohibiting Match from seeking to register any trademarks in the United States featuring the term "SWIPE," or any variation thereof, in connection with online dating apps or any goods or services related to online dating apps. K. That this is a case that stands out from others and thus an exceptional case under 35 U.S.C. § 285, and ordering Match to pay Bumble reasonable attorneys' fees incurred in this action; L. That the Court award compensatory and/or exemplary damages, from Match and IAC, in an amount to be proven at trial; M. That the Court award pre-judgment and post-judgment interest, from Match and IAC; N. That the Court award Bumble attorneys' fees and costs under the Lanham Act as an exceptional case; O. That the Court award Bumble its costs and expenses incurred in this action and its attorneys' fees as permitted by law; and P. That the Court award Bumble such other and further relief that it deems appropriate. JURY DEMAND Bumble respectfully requests a trial by jury on all issues so triable. -63- 5 Dated: April 10, 2019 Respectfully submitted, By:/s/ Joseph M. Drayton Deron R. Dacus (TX 00790553) THE DACUS FIRM, PC 821 ESE Loop 323, Suite 430 Tyler, TX 75701 Telephone: (903) 705-1117 Facsimile: (903) 581-2543 ddacus@dacusfirm.com Joseph M. Drayton (pro hac vice) NY Bar No. 2875318 COOLEY LLP 1114 Avenue of the Americas New York, NY 10036 Telephone: (212) 479-6000 Facsimile: (212) 479-6275 jdrayton@cooley.com Michael G. Rhodes (pro hac vice) CA Bar No. 116127 Matthew Caplan (pro hac vice) CA Bar No. 260388 COOLEY LLP 101 California Street, 5th Floor San Francisco, CA 94111-5800 Telephone (415) 693-2000 Facsimile: (415) 693-2222 mrhodes@cooley.com mcaplan@cooley.com Rose S. Whelan (pro hac vice) DC Bar No. 999367 COOLEY LLP 1299 Pennsylvania Ave., N.W. Suite 700 Washington, DC 20004 Telephone: (202) 842-7800 Facsimile: (202) 842-7899 rwhelan@cooley.com Attorneys for Defendant Bumble Trading, Inc. -64- 5 CERTIFICATE OF SERVICE The undersigned certifies that the foregoing document was filed electronically with the Clerk of Court using the CM/ECF system which will send notification of such filing to all counsel of record on ____________, 2019. /s/ Joseph M. Drayton Joseph M. Drayton 201632465 -65-