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

Ms Gupta’s evidence is that over six days in June 2022 the Claimant spent US$141,000 on outdoor billboards and posters in key business hubs, near WeWorks’ offices and at iconic sites, plus associated social media, for a Platinum Jubilee campaign over 6 days in June 2022. She says that the Claimant’s advertising agency provided figures suggesting that the outside advertising was seen by approximately 1.8 million people who each saw it on average about three times, being just under 6 million impressions. That underlying information from the advertising agency has not been provided by the Claimant. The social media campaign was across Facebook, Instagram and LinkedIn “targeting London entrepreneurs, start-ups, early tech-adopters and investors”. Ms Gupta said that she believes it reached about 1.79 million people who each viewed it approximately 4 times. The 552 social media posts of the campaign were engaged with, for example by ‘likes’ or reposts, 552 times, and resulted in about 6.600 clickthroughs to the Claimant’s website. She says that the Claimant viewed it as a very successful marketing campaign developing the reputation of the Claimant’s marks and brands. Again, no underlying information to support this data is provided.

I note here that the Claimant has provided two other examples of other marketing campaigns, but these date from November and December 2023 and so after the relevant date at which acquired distinctiveness falls to be assessed.

Ms Gupta’s written evidence is that as a result of the use and marketing of the Marks, the Claimant has seen considerable growth in media coverage of it. She annexes an Excel spreadsheet of UK media coverage in 2022 and 2023. Looking at the entries for 2022, the Claimant’s table shows that it had 35 pieces of UK media coverage, of which 11 were articles in the UK national press. The total ‘views’ of that coverage is said to be 1.7 billion, and the advertising value equivalent (“AVE”) of that coverage is put at £42.1 million. In 2023 this increased to 74 pieces of coverage (of which 36 were in the UK national press) said to have 6.5 billion views and an AVE of £161.5 million, but all of these 2023 entries, again, are after the relevant date at which acquired distinctiveness falls to be assessed for the purposes of the infringement claims, as Mr Howe for the Claimant accepted in closing submissions.

In cross-examination Ms Gupta said that this spreadsheet was not produced for this litigation, but is a maintained list. She said the figures it contains for ‘views’ were obtained from the publications themselves as the online and print ‘reach’ of their publication, and the AVE would have been produced from a mix of the publications themselves and from the Claimant’s PR and communications department. She accepted that no underlying information had been provided to enable those calculations to be checked or interrogated.