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

I have found that CLOUD is a descriptive term used widely in the software industry as described by Mr Girdhar, i.e. to describe a product which involves virtual rather than local hosting of data. I take judicial notice that it has been so used and understood widely amongst the general public, and by implication by the average consumer in this case, since at least 2012, when Apple launched iCloud.

I accept the Defendants’ submissions that the average consumer would consider that the ‘Cloud’ element of the Builder Cloud Mark adds no material distinctive character to the Builder Home Mark because of the descriptive, generic nature of it and because the button motif in which it set is easily disregarded, the ‘Builder’ element being the dominant element of the mark. As such, I am satisfied that the Builder Cloud Mark is inherently unable to identify the goods and services for which it is registered (as the Defendants limit their invalidation case) as originating from the Claimant and so distinguish it from goods or services of other undertakings, as at the registration date.