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

Ms Gupta says that as a result of the Claimant’s marketing efforts “the Claimant’s Builder family of brands is one of the best known app software development brands in the UK”. She says that she interacts with customers at events, where hundreds of people visit the stands. She says most of them have some idea who the Claimant is, and generally refer to the Claimant as Builder, as do the Claimant’s staff, or as Builder.ai initially and Builder later. In her written evidence she says that consumers use the word ‘Builder’ and ‘Builder.ai’ to search for the Claimant using search engines.

On that latter point, Ms Gupta has provided some evidence from Google AdWords statistics showing the number of times that Builder.ai was the search term, and the number of click throughs to the Claimant’s website from such searches. That is quite interesting, given Ms Gupta’s evidence of the limited marketing which took place in 2019, and her decision to double the 2021 marketing spend when she arrived in London in 2022, because it shows surprisingly little change in brand search volumes over the March 2019 – May 2023 time period it covers. For the 9 months of 2019 that it covers, it shows 2,821 searches and 61% of those clicking through to the Claimant’s website (being 1,733 ads). If that is uplifted proportionately for a full year, that would be 3,761 searches. 2020 was a depressed year with a significant dip in brand search volumes, which perhaps could be explained by the pandemic. However, 2021 and 2022 show an almost identical volume of searches for Builder.ai as in 2019, at 3,730 and 3,800 searches respectively, and the conversion rate is significantly lower than in 2019, at 49% and 47% respectively. In 2023 there is an increase in the volume of brand searches at 2,821 over 5 months, which uplifted proportionately over a full year would be 6,770 searches, but the conversion rate continues its descent, to 36%.

Ms Gupta also exhibits a Google Trends screenshot relied on by the Claimant, which tracks as a graph the search terms ‘Builder.ai’ (in blue) and ‘Builder ai’ (without the full stop separating the two elements) (in red) in the UK from 1 January 2018 to 31 December 2023. This has been annotated with a comment, that “We’ve observed an uptrend in searches for the ‘Builder ai’ [I note, no full stop] brand beginning in November 2022. Since that time the visibility and recognition of our brand have been on a consistent upward trajectory, closely aligned with the growth and development of the brand itself”. Ms Gupta confirmed that was not her comment, but that of someone from the Claimant’s digital team. That screenshot shows both the blue and red lines bumping along the X axis, barely troubling the Y axis which is labelled “interest over time” from 0 – 100, until the end of 2022 when the red line (being ‘Builder ai’ with no full stop) suddenly takes off and hits peak popularity in the second half of 2023. The blue line does not behave in the same way at all, showing only a very slight increase over the same time period. Ms Gupta was not really willing to accept this suggestion when it was put to her in cross-examination, but nonetheless it seems to me more likely than not that the dramatic increase in searches was not because of a sudden interest in ‘Builder ai’ (as then it would likely to be replicated at least in some form in the ‘Builder.ai’ searches, and is not) but in AI generally. As Ms Gupta did accept in cross-examination, Chat GPT was launched in November 2022, which is about when that red line takes off in the screenshot, causing much excitement about AI with the general public since that time. Mr Girdhar also made that point in his cross-examination, saying “Everything is becoming AI”. For that reason I put thered line to one side and focus on the blue.

Ms Gupta accepted that the blue line in that screenshot showed small numbers of searches for ‘Builder.ai’, but said that others would also be searching for “Builder Studio” and “Builder Now” etc. She accepted that the Claimant could have provided data for those search terms, but had not done so. It has provided brand search volumes for “Builder”, which show that of those who had searched for the term “builder” between 1 August 2021 and 31 May 2023 in the UK, only 15 had clicked on the Claimant’s “builder.ai” ads as a result of the search. That is about 2 searchers every 3 months. Ms Gupta agreed that was very low, saying “Yes, that is not the best number”.

On balance, therefore, I find that the quantitative data before me does not support Ms Gupta’s written evidence that consumers use the word “Builder” to search for the Claimant using search engines, and it provides only very limited support to the contention that ‘Builder.ai’ has strengthened as a brand in the UK from 2019 to early 2023.