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

The Claimant has set out in the APOC and Reply and Defence to Counterclaim what it says are uses by the Defendants of the signs which are similar or identical to the Marks, by reference to screenshots from the Appy Pie Website. Ms Gupta’s written evidence is that this “shows them using Builder.ai although they have removed the full stop between “Builder” and “ai”” in February and November 2022. She was taken to those examples in cross-examination and accepted that these did not show that a full stop had been removed from “Builder.ai”, but they were simply instances where the word ‘builder’ was next to ‘AI’, such as in reference to one of D2’s products: “Based on our response, our app builder AI…”.

Similarly, Ms Gupta in her witness statement says that the Defendants have also been using the Builder Now Mark, but she accepted in cross-examination that the examples she relies on do not show the words “Builder Now” in the trade mark sense but as sentence fragments where the Defendants are exhorting people to use their own products, such as “Try Android Builder Now” and “Try DIY on-demand delivery App Builder Now”.