SA billionaire Shaun Bonett and his model business partner Lydia Simonis fight Instagram in Federal Court over Instadate trademark
SA billionaire Shaun Bonett and his business partner Lydia Simonis are fighting social app giant Instagram in two court cases over trademarks.
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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 got his start as a lawyer in Adelaide before launching Precision Group, which now has more than $1bn in assets under management – a journey that started with the purchase of the Port Canal Shopping Centre in 1998.
Precision still owns that centre, which it has recently redeveloped, along with Adelaide Central Plaza on Rundle Mall and major retail and commercial office sites across the nation.
Now Sydney-based, 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.
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 trademarks” 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 says.
Instagram is seeking to have Instagoods restrained from using the trademarks in that matter, while it has already succeeded in the separate, previously mentioned claim against Instagoods around its attempt to register the Instadate trademark.
Instagoods has appealed that decision, and the matter will head back to court in September.
The judgment in that matter said 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 says.
“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.
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 that “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 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 “insta” had meaning on its own, not associated with Instagram, however for the purposes of trademark law, the court disagreed.
While agreeing it did 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 trademark, Instadate, is concerned with goods and services for which the Instagram trademark has a reputation,’’ the judgment says.
“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 trademark has a reputation and because of that reputation, use of the trademark would be likely to deceive or cause confusion.’’
Precision Group has been contacted for comment.
While the UK-born, Adelaide-raised Mr Bonett is best known for his property businesses, 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.
Originally published as SA billionaire Shaun Bonett and his model business partner Lydia Simonis fight Instagram in Federal Court over Instadate trademark
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