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

There is no dispute that the LinkedIn Post uses the sign “Builder.ai” in a form identical to both the Builder.AI Figurative Mark and the Builder.AI Word Mark, to refer to the Claimant’s goods or services, as part of a list entitled “7 Best App Builders”. The LinkedIn Post lists the D2 first and the Claimant third. It deals with each in a few seconds, showing the brand, and a screenshot from the relevant company’s website showing pricing. It provides no detail of specific features or characteristics of the differing products. At the end it says, “Which do you prefer”?

Ms Gupta’s written evidence is that all posting on LinkedIn, especially by companies, is really advertising or marketing, and said, “It is clear that the Defendants’ LinkedIn [P]ost was promoting their product and trying to say that it was better than other similar products, including the Claimant’s”. She said “The Defendants would have wanted to cash in on the good brand name of the Claimant. They would also want to try to show they were cheaper than the Claimant, but not to show the differences in the product and would not have shown the amount of effort their customers would have to put in to produce their app as they have to develop it themselves using the Defendants’ tools. The Claimant develops the apps for their customers unlike the Defendants who solely provide tools to the customer for that customer to develop its own app itself.”

She describes the LinkedIn Post as “materially inaccurate” because it said the price quoted for the Claimant’s product featured, Builder Studio Store, is “from £295” a month when there were lower prices available, including a starter package at £150 per month for 24 months. She complains that the LinkedIn Post does not compare like with like, because Builder Studio Store has different functionality, features and support than the Defendants’ product, and those differences serve to explain the price difference highlighted in the LinkedIn Post.

In cross-examination, however, Ms Gupta accepted that the LinkedIn Post was just a list of seven products in the no-code application development space, rather than any sort of qualitative review; that the pricing screenshot on the Builder.ai entry came from the Claimant’s own website and so was not inaccurate, albeit she maintained her complaint that lower prices could have been showed; and that the post was not encouraging anybody to buy a particular product at all, but rather presenting different products available in the market place each with a price from the providers website, and asking “Which one do you like?”. She further accepted that the Claimant had posted a similar list on a blog on its own website, saying “With so many app builders out there, it can be difficult for beginners to know which platform to go for. Below, we explore some of the most widely used app builder platforms, giving you all the information you need to choose a builder and make an app, even if you’re a complete novice”. In that list, the Claimant is listed first, and D2 second.

Mr Girdhar does not himself manage the marketing function at D2, including the posts it makes on D2’s LinkedIn page or its GoogleAds spend. However he says that he has investigated the circumstances of the creation of the LinkedIn Post complained of, and has spoken to D2’s Head of Marketing who was aware of the circumstances of its creation. He said that it was one of several similar posts published by D2 on its LinkedIn page for marketing purposes. In cross-examination he said that the marketing purpose was not particularly to drive sales of D2’s app builder product, but had the wider purpose of seeking to promote the growth of the whole “no-code ecosystem”. He said that it was part of the marketing work that D2 does to grow that industry as a whole, so it did not focus just on Appy Pie but on multiple no-code development platforms or no-code app builders. He said “We want no-code to be the biggest industry and the way it is growing, no-code is the future. We want everyone to be aware of the technology, so people do not have to write code, basically”. Given that the LinkedIn Post does not encourage the purchase of one product over the other, as Ms Gupta accepts, I accept his evidence that its primary purpose was not to drive sales but to drive interest in the no-code app builder market.

Mr Girdhar’s written evidence is that “In each case, junior members of [D2’s] marketing team conduct Google searches for specific relevant keywords and compile a list of the top natural search results for those keywords. We then publish a post that lists those results. There is no intention to rank the products shown in the posts in any particular order. The products or companies listed in these posts will all relate to the search term, however we do not limit the posts to direct competitors: we simply include products responsive to the keywords.”. In oral evidence he clarified that D2 did not change or reorder the positions in which the Google search returnedthe results, so the order that the different products were presented in the LinkedIn Post video is the order they were returned on the search. I accept his evidence. He said his team did, however, go onto the websites of each of the products returned by the search to find pricing, and took a screenshot of what they found and added it to the video. Mr Howe put it to him that there were other pricing options on the Claimant’s website which were rather cheaper than the price chosen by his team, and he said that he had been told that his colleagues’ intent originally was not to show any pricing. He said, “Whatever screenshot we got, we just took the screenshot and pasted it.”. He said it can be seen from the web archive that “this is exactly what we were seeing on the [Claimant’s] website at the time.”.

Mr Howe put it to him that even if it was not D2’s intention to do a price comparison, that is how it would appear to people who watched the LinkedIn Post video. Mr Girdhar did not accept that. He said that there was no attempt at any comparison between the products, and it was never meant to be perceived as a comparison, because it did not, in fact, compare the products. It was a “listicle” of products available in the no-code application development he said, similar to those that that appear on the Claimant’s own blog.

In cross-examination, Mr Girdhar said that the LinkedIn Post was directed at the Citizen developer no-code community across the world, as D2 has customers across the world, but said that these posts didn’t get much traction on LinkedIn where people were mostly looking for jobs, so it was not a good marketing platform. His evidence on these points is supported, in my judgment, by the significant amount of analytic data provided by Mr Girdhar in relation to D2’s LinkedIn page and the LinkedIn Post. That supports evidence in his witness statement that typically less than 10% of D2’s LinkedIn traffic is from the UK (the evidence being D2’s LinkedIn profile analytics for the year 2023, which he said has been consistent for as long as he can recall); and to support the analysis he provides in para 26 of his witness statement:

I find that the LinkedIn Post makes no attempt to draw any comparisons between the products (save that they are all no-code development platforms or app builders) because it was a post created for the purposes of education and not marketing, as Mr Girdhar says. It informs viewers of options in the market, and provides indicative pricing which ranges from $8 to $340, but does not attempt to put forward any of them as better or preferred options, compare the features and functionality of the products, review them or address the different pricing structures that each provider may have in place. It asks viewers merely “Which do you prefer?”, but in order to answer that question, they will have to carry out their own research and assess the products against their own needs and finances. I also accept Mr Girdhar’s evidence that the LinkedIn Post was not targeted at any particular jurisdiction, in the lay sense, but made available to anyone around the world who wished to access it on D2’s LinkedIn page. The question remains whether it was targeted at the UK in the legal sense for the purposes of the Category 2 alleged infringement claim, and I will address that in Issue 8 below.