[2025] EWHC 1722 (IPEC)

The Claimant claimed that the Defendants had provided software both through the website and through the app. The Defendants contended that all they had done was provide onboarding etc services, accessed by the use of software. I do not accept that distinction. It seems to me that the Defendant has provided software in two ways. First, it has provided software online in the form of Software as a Service, or Platform as a Service, through its website. There were a number of references in the evidence to the Defendants’ platform and in the absence of any evidence to the contrary I assume that, as would be usual, such software was non-downloadable (so would not fall within Class 9). In addition, the Defendants’ app is downloaded by the drivers, and seems to me to be downloadable software, falling within Class 9. The Defendants made a number of references in the Amended Defence and Counterclaim to the First Defendant’s goods and services, and the downloadable software appears to me to be the only ‘good’ to which it could have been referring.

The Claimant said that “Software, including a mobile app, which offers and supports any of the foregoing services” is identical to its Class 9 “computer software and application software; …all the aforementioned goods in connection with financial services, monetary services.” Allowing for my findings and amendment of the Class 9 specification, I conclude that the Defendants have advertised and offered downloadable software which at the least provides the generation, provision or submission of invoices and is a sub-set of the Claimant’s Class 9 goods, and so is identical to them. Providing the same sort of software in a non-downloadable form would have the same trade channels, purpose etc., and so such non-downloadable software is similar to the Claimant’s Class 9 software.