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

Ms Gupta was asked about this advertising and marketing in cross-examination. Once again, we run into problematic figures. She was taken by Mr Lomas to Annex B to the Claimant’s APOC, which is a table setting out payments made to Google for AdWords spend split out by word and by jurisdiction worldwide for each of 2021 and 2022. That appears to show that the Claimant had no Google AdWords spend for Builder.ai in the UK in 2021, and spent just under £30,000 in 2022, which was causative of 8,800 clickthroughs and 244 conversions. Ms Gupta agreed that was a small level of spend, but noted that in her witness statement she sought to disassociate the Claimant from those figures, saying that the Annex B APOC table was “obtained from the Claimant’s accounts department and had been misunderstood”. No further information was provided in her witness statement (or, indeed, in oral evidence) about how it had been misunderstood or why it should not be relied on.

Instead, Ms Gupta in her witness statement espouses a different Annex B, this time Annexed to the Reply and Defence to Counterclaim. This is a screenshot from a GoogleAds summary page. At the top, there is a reference to Builder.ai together with a contact name and their work email address at the Claimant, so it appears to be the Claimant’s account. It purports to show a spend of $391,000 on Google Ads from January 2022 – June 2022, but it is impossible to discern how that has been spent. The information about clickthroughs and conversions has been redacted so there are no success metrics before the Court either. The data seems to have been filtered using the somewhat ambiguous criterion “Campaign name contains uk” but Ms Gupta accepted that it does not tell us what AdWords it has been spent on, in what countries, and nor could she explain the discrepancy between the two sets of figures in the two Annex Bs. Once again, I regret I cannot rely on this information at all, when one document produced by the Claimant suggests the UK Google AdWords spend for Builder.ai is merely £30,000 over a full year, and the other puts AdWords ‘campaign with the name including uk’ at almost $400,000 over six months. The two are irreconcilable, and are not even directly comparable, in my view. I do not consider I can rely on either when Ms Gupta’s evidence is that the former is unreliable (or “misunderstood”) and I simply do not have enough information about the latter to know what it relates to, and no background documentation against which to verify it. Further, it seems unfeasibly high in my judgment, particularly when viewed against the table Ms Gupta displays at paragraph 19 of her witness statement.

The paragraph 19 table was also said by Ms Gupta to have been produced by the Claimant’s account department, giving “details of all advertising spend for the Claimant aimed at the UK market from 2019 to 2023… broken down by type of marketing… [and] converted into pounds [sterling]”. In fact, the table does not show this. It only covers the period from 2021 to 2023. It purports to show the marketing spend rising from £683,081 in 2021 to £1,437,433 in 2022 to £1,506,733 in 2023. That comes to £3,627,247. That is, again, problematic, as it does not correlate with the figure for marketing spend pleaded in the APOC, which provides at paragraph 8A.2 that since approximately March 2019 to the present, the Claimant has spent approximately $3.18 million on marketing and advertising in the UK. This is significantly less than the total of £3,627,247 provided in Ms Gupta’s witness statement, particularly when the USD/GBP exchange rate is taken into account. Again, Ms Gupta accepted these figures were inconsistent in cross-examination, she said that she thought the figures in the APOC were probably not correct and those in her witness statement were, but could provide no real justification for that contention, and she accepted that no underlying information had been disclosed in relation to either set of figures to assist the Court in reaching a determination about which, if either, was right.

Even if I were simply to accept the advertising spend figures in Ms Gupta’s witness statement, those totals are broken down into just 6 categories (one of which is merely “Events”, another “Display” which Ms Gupta clarified was display marketing on third party websites and advertorial pieces on online publications). These are not further particularised and so they do not provide any useful information about exactly what pieces of marketing were carried out, at what cost or how effective any of it was in terms of impressions, conversions, leads, click-throughs, etc. All that is provided is a sub-total for each such category. I do not know into which category Google AdWords spend falls, but if it is in “Brand”, which seems the only real possibility, that category spend is £581,291 for 2022, of which the majority would have gone on Google AdWords in the first six months of the year, if the Annex B attached to the Reply and Defence to Counterclaim is right. I do not think it can be, as that suggests there was little other spend on “Brand” that year save for Google AdWords, and that there was little spend in the second half of the year at all. Both seem unlikely. Other bare figures include that in 2022 £271,244 was paid to Squirrel Media for online display and influencer advertising (but nothing was spent in this category in 2021), and in 2021 £190,163 was spent on ‘Events’.

In relation to the latter, Ms Gupta goes on in her witness evidence to say that the Claimant spent $76,000 at London Tech Week in 2021, but there is nothing at all to tell me where the rest of the £190,163 was spent that year nor, for example, how many people attended London Tech Week, or any success metrics arising from that event. Ms Gupta accepted in cross-examination that none of that sort of detail had been provided. She also accepted in cross-examination that many of the events from 2021 and 2022 were outside the UK, because, she said, the UK did not host many big tech community events in this time period (and even in 2023 and 2024) so the Claimant was forced to go abroad. There is no evidence before me to enable me to assess if the monies spent on events abroad are accounted for in whole or in part as UK advertising spend in either of the Claimant’s UK advertising spend figures, and if so, whether this is justifiable given the level of attendance at such events by UK consumers, for example.