Match.com v Muzmatch: Do start-up companies have a chance against market leaders in legal proceedings or is the dating sector dominated by current market leaders and their ‘unfair legal tactics’?

In 2001, Match.com (Match Group LLC) began offering their online dating services in the UK. In 2011, Muzmatch set up their business for providing online matchmaking services targeted towards the Muslim community. In 2020 Match.com initiated trade mark infringement proceedings against Muzmatch. In these proceedings Muzmatch relied upon the honest concurrent use defence. The honest concurrent use defence involves filing evidence that the defendant has been using the trade mark in a bona fide manner and this use has not, or is not likely to, have an adverse effect on the functions of the claimant’s trade mark.

A decision on these proceedings was issued in June 2022, where it was found that there was a likelihood of confusion and that Muzmatch had taken unfair advantage of the distinctive character of Match.com’s trade marks. This decision also dismissed Muzmatch’s honest concurrent use defence. Muzmatch then appealed this decision and this case was taken to the Court of Appeal.

The Court of Appeal confirmed that the honest concurrent use defence is not a separate defence, but rather a factor to consider in the analysis of trade mark infringement. In other words, in trade mark infringement proceedings, once the burden shifts to the defendant, the defendant cannot rely upon honest concurrent use unless they can additionally state that, as a result of their honest concurrent use, there has been no adverse effect on the functions of the trade mark. The Court of Appeal did not find an issue with the 2022 decision and maintained that there was "a likelihood of confusion as a result of Muzmatch's use of keywords comprising the word 'match'". As a likelihood of confusion was maintained, there had been an adverse effect on the functions of Match.com’s trade mark and Muzmatch’s honest concurrent use defence was thus unsuccessful.

The ‘honest concurrent use defence’ is therefore not seen as a separate defence and a defendant is unlikely to succeed by solely relying on this ‘defence’. However, there are likely other defences available to defendants and we therefore encourage businesses to obtain guidance from us before proceeding to file/use any trade marks to ensure that their business is equipped for ‘legal battle’. Such guidance should be sought to prevent a business finding themselves in legal proceedings against market leaders, or, if a business does find themselves in such a situation, to ensure that they have an arsenal of defences available to them in order to counter any ‘unfair legal tactics’.