Shaun Bonett and model business partner Lydia Simonis appealing Instagram trademark ruling

Shaun Bonett and model business partner Lydia Simonis are not backing down in their court battle with the social media giant.

Shaun Bonett and business partner and former Miss Cook Islands Lydia Simonis meeting Prince Charles at the Prince's Trust annual dinner. Picture: Supplied

Billionaire entrepreneur Shaun Bonett and his business partner - the former Miss Cook Islands Lydia Simonis - are taking the fight to Instagram with a court battle over the name “Instadate”.

Mr Bonett’s company Precision Management Corporation and Ms Simonis - who has 348,000 followers on Instagram, are the owners of Instagoods Pty Ltd, which is locked in two Federal Court battles with Instagram LLC - the Facebook-owned sharing app.

Instagram objected to the company seeking to register the trademark “Instadate” in early 2019, and in July this year successfully petitioned the Registrar of Trade Marks to block Instagoods from registering the mark.

Lydia Simonis owns half of Instagoods Pty Ltd. Picture: @lydiasimonis/ Instagram

Instagoods is now appealing that ruling, while Instagram has followed up with another claim, lodged just this week, objecting to the use of both the “Instagoods” and “Instadate” marks.

Instagram says that both “so closely resemble the Instagram trade marks” that their use would lead “ordinary reasonable persons in Australia” to think that they were associated with Instagram or that they were indeed the same business.

READ MORE:Has Aussie rich-lister Shaun Bonett created the next tech unicorn?

Instagram says Mr Bonett, who is worth an estimated $1.44bn, and Ms Simonis’s company has passed off “the ... Instadate app as the applicant’s app, or an app that is associated, licensed, sponsored, affiliated with or approved by, the applicant’’.

“The applicant has demanded that the respondent cease engaging in the conduct that is complained of in this statement of claim, and the respondent has refused or failed to do so,’’ the statement of claim said.

Instagram is seeking to have Instagoods restrained from using the trade marks in that matter, while it has already succeeded in the separate, previously mentioned claim against Instagoods around its attempt to register the Instadate trade mark.

Instagoods has appealed that decision, and the matter will head back to court in September.

The judgment in that matter said that Instagram is one of the world’s most popular social media apps.

“Since its inception in 2010, Instagram has rapidly gained popularity globally and in Australia. Hundreds of millions of people worldwide use Instagram,’’ the judgment said.

“As of June 2018, there are 1 billion monthly active accounts on Instagram worldwide, more than 500 million accounts of which are active on Instagram every single day.’’

In Australia alone, it had about 9.4 million users.

Shaun Bonett at his offices in Sydney.

The matter in that case in part revolved around the use of the prefix “insta” and whether it could be considered inherently associated with Instagram.

The Instadate app is described in the judgment as a platform which “enables individuals who physically attend specific locations prescribed by the applicant (meeting place) to indicate their level of attraction of other(s) that are also physically present at the meeting place, through the applicant’s platform’’.

“In the course of providing users with access to the applicant’s platform, certain retail goods and services will be provided to users in a manner ancillary to the primary purpose.’’

The judgment indicates that Mr Bonett and Ms Simonis’ company “intends to operate a number of physical retail spaces, being Instagoods stores, at which users of the Instadate app will shop and ‘hang out’.

Promotional material for the app includes statements such as: “Life is for shopping & hooking up’’, and “Instadate. Touch & feel your likes and loves.’’

Instadate’s lawyer argued that “insta” had meaning on its own, not associated with Instagram, however for the purposes of trade mark law, the Court disagreed.

While agreeing that it did indeed have a meaning in and of itself “increasingly over time, ‘insta’ has come to be used as a reference to the opponent’s app and activities or people associated with it’’.

“The trade mark, Instadate, is concerned with goods and services for which the Instagram trade mark has a reputation,’’ the judgment said.

“Given it is used in the contexts of software for retail and retail services, I consider it likely that the Insta prefix in Instadate, will, at the very least, cause a significant number of consumers to wonder whether the applicant’s goods and services come from the opponent or are sponsored or licensed by the opponent.’’

“I am ... satisfied that the opponent’s trade mark has a reputation and because of that reputation, use of the trade mark would be likely to deceive or cause confusion.’’

Precision Group has been contacted for comment.

The Mark Zuckerberg-led Facebook acquired Instagram for $US1bn in 2012.

While the UK-born, Adelaide-raised Mr Bonett is best known for his property businesses, with his holdings including Adelaide Central Plaza, Pran Central in Melbourne and MacArthur Central in Queensland (and the Port Canal Centre in Port Adelaide), he has also had significant success in recent times with online gift card company Prezzee.

Earlier this year The Australian reported Prezzee had processed more than $600m worth of gift cards for its clients and had deals to supply cards to more than 400 retailers and businesses, including Afterpay, Zip and Klarna.

Precision Group has been contacted for comment.