Engineer.AI Global Ltd provided “no code” app development services. It had a series of registered trade marks including BUILDER and BUILDER.AI in word and in stylised forms. The second defendant Appy Pie LLP supplies “no code” app builders of the drag and drop type.
In 2022, Engineer.AI sued the defendants for infringement in respect of various uses of Builder, Builder AI and other phrases which it contended were used in a trade mark rather than descriptive sense. It also alleged that a Linked-In post which reproduced its Builder.AI device mark was comparative advertising which infringed because it failed to comply with regulation 4 of the Business Protection from Misleading Advertising Regulations 2008/1276.
The defendants counterclaimed for invalidation of the registered trade marks on the basis of descriptiveness and lack of distinctiveness.
Martin Howe KC was instructed to act for the claimant at the trial. On 19 June 2024, Judge Melissa Clarke sitting in IPEC dismissed the allegations of infringement, and held on the counterclaim that the registered marks sued upon were partially invalid to the extent that they covered goods and services in relation to which “builder” was descriptive.