Intellectual Property Enterprise Court

Claim No: IP-2022-000086 - [2024] EWHC 1430 (IPEC)

Fecha: 19-Jun-2024

‘Builder’ and ‘Builder.ai’ as descriptive terms

‘Builder’ and ‘Builder.ai’ as descriptive terms

81.

The Claimant’s main complaint in relation to Category 1 infringement is the Defendants’ use of “Builder” as a part of names for their products and services as set out in paragraph 11.2 of the APOC. Ms Gupta says “Consumers recognise references to “Builder” as references to the Claimant, so these uses are likely to suggest to consumers that these products come from or are associated with the Claimant contrary to the true position. The other references to “Builder” throughout the Defendants’ website reinforce this message. More generally, in calling to mind the Claimant, these references enable the Defendants to take the benefit of the positive brand image associated with the Claimant’s trade marks”. This is a very lawyerly passage. When this was put to her in cross-examination, Ms Gupta confirmed she has had no legal training, but said those were her words. She accepted that these comments were just an expression of her opinion. They are, in my judgment, trespassing into the realms of advocacy which is not the function of a witness of fact.

82.

Ms Gupta further stated in her written evidence that “There is no reason for the Defendants to be using the word “Builder”. It is not a recognised term in the app development market… the sole reason for the Defendants using “Builder” in the way they do is to try to confuse consumers into thinking their products are the products of or connected to the Claimant.” Ms Gupta resiled from all of these statements in cross-examination as I will come on to explain.

83.

Mr Girdhar’s evidence is that when he started D2 and launched his app builder and website builder products, he did not associate the term “builder” with any particular company or brand. He chose to use the term “app builder” in marketing from the very start of the business to describe the products that D2 offered and their core function, including on the Appy Pie Website since inception, and has supported this with a screenshot showing use of the term “app builder” on D2’s website in 2013. He says the term “builder” has been used descriptively in the software industry for as long as products that enable users to build websites and apps have existed. He says it is a descriptive term and used by consumers and the industry as a whole with other descriptive terms to describe the functionality of such software tools e.g. “website builder”, “app builder” or with a higher degree of specificity, “retail app builder”. He thought these sorts of terms, using “builder” or “Builder”, had been used since about 2010 but relies on screenshots of use of “website builder” “app builder” and “chatbot builder” in articles and press releases from various third party sources dating between 2013 and 2020. He says those reflect his recollection of how those terms were used by third parties throughout the industry to describe such software during that period. Mr Howe suggested to Mr Girdhar that the word “builder” without a descriptor in front did not have an accepted meaning in the software context, but he denied it. He said, “So Microsoft has just launched AI Builder. So if you Google it, you know, AI builder, the entire first page is filled with Microsoft pages. Google just launched Gen AI app builder. Now everything is becoming AI: AI app builder, Gen AI, generated AI… I see app builder everywhere in this category… the broader category is no-code app builder or drag and drop app builder”.

84.

His evidence is, in my view, supported by documents from the Claimant’s own website. Those include a blogpost entitled “A little bit about AI (and more, straight from Builder’s mouth!” of 3 August 2019. Some extracts (with my emphasis) include:

“So, unless you’re engrossed in this crazy industry already, understanding exactly what Builder.ai does from a product perspective can be difficult, especially as AI has become a wider used adjective for anything autonomous (a little like “building apps” is the new “building custom software” even though “apps” as a term has largely been linked to mobile software).”;

ii)

“Builder.ai is a Human-Assisted AI platform for building tailor-made software… because at a core level, we believe that human creativity and talent will always be part of the idea creation and building journey.”;

iii)

“…we have already helped entrepreneurs & small businesses to:

•

BUILD: Build your idea effortlessly with Builder instantly without any coding knowledge.

•

RUN: Never pay for building the same app again, get warranty for updates.

•

SCALE: Get everything from cloud infrastructure and analytics to paid services.”

85.

Another blog on the Claimant’s website answers the question “What are online app builders?” with the following definition: “Online app builders and online platforms let you build your own app from scratch without coding. They more often than not utilise a drag and drop interface. They offer a range of stock templates and features to suit different types of apps, including restaurant apps.” (my emphases).

86.

The Claimant uses the term “builder” in a generic and descriptive sense (referring to, for example, “app builders”) in multiple places on its own website, in examples contained in the trial bundle, as does Ms Gupta in both her witness statement and in her oral evidence. Ms Gupta accepted in cross-examination that by 2018 at least, “app builder” was “absolutely” such an accepted and generic term. I find that ‘builder’ was a descriptive term used widely in the software industry as described by Mr Girdhar, i.e. as a tool to enable the creation or development of software, whether used with a further descriptor or not, since at least 2013. There remains a dispute about the significance of capitalisation of the word “Builder” which I come onto now.

87.

Mr Girdhar said neither he nor D2 has attached any significance to whether the initial “b” at the start of the word “builder” is capitalised or not, but that they generally followed the norm in India of capitalising words in headings on their website, and also usually capitalised product names when they appeared in bodies of text on webpages.

88.

In respect of the Defendants’ use complained of, Ms Gupta in cross-examination:

conceded that she had no concerns about use of the word ‘builder’, with a lower-case ‘b’, in the context of the phrase ‘app builder’ to refer to a software tool used to build apps. She said it was its use with an upper-case ‘B’ that was the problem;

ii)

nonetheless she accepted that the use of “Builder” with an upper-case ‘B’ was also acceptable within a headline or title where all words were being capitalised;

iii)

she accepted that there was evidence before the Court showing use of the term ‘App Builder’, sometimes capitalised, sometimes not, by a number of third parties in the app development/creation space even before the Claimant had been incorporated, for example in a 2018 list of app builders which included one called TheAppBuilder;

iv)

she accepted there were a number of references in third party documents and articles predating February 2022, relied on by the Defendants, to ‘App Builders’ and ‘no-code App Builders’ (upper-case) which she accepted were not referring to the Claimant;

she accepted that Google search results were not case-sensitive, so that if a search was carried out for any of the signs complained of, that would return links to the Appy Pie Website whether or not they were written in upper case or lower case, and whether or not the search was carried out in upper case or lower case, although she disagreed that most people would not notice the difference between upper case and lower case;

vi)

she ultimately accepted that there is a reason for the Defendants to use ‘Builder’ with a capital B that is not necessarily to refer to (or, I would extrapolate, associate the Defendants with) the Claimant or its products, contrary to her witness statement.

89.

I am satisfied from the evidence I have seen that the word “Builder” with an upper-case ‘B’ was equally also a descriptive term used widely in the software industry as described by Mr Girdhar, i.e. as a tool to enable the creation or development of software, whether used with a further descriptor or not, since at least 2013 and interchangeably with use of the word “builder” with a lower-case ‘b’.

90.

It is convenient to note here that Mr Girdhar says that both “Cloud” and “Pro” are two other very common terms in the software industry which are used descriptively: “Cloud” since the early 2010s when cloud hosting by Amazon Web Services had become a very popular alternative to dedicated server hosting, and so was used to describe a product which involves virtual rather than local hosting of data; and “Pro”, which was commonly used in the technology industry to describe “professional” or superior hardware or software to appeal to businesses or customers requiring greater functionality. Again, he has provided support in the form of articles and website printouts showing such use, but his evidence on this point was not challenged and I accept it.