Posted by James Worrall, Partner
Lush vs Amazon: the battle continues
In December last year, we commented on the David vs. Goliath battle between Lush and Amazon. The story has now developed further with the High Court ruling that Amazon did infringe Lush’s trade mark.
Photo credit: Keith Williamson – http://www.flickr.com/photos/elwillo/
In December last year, we reported on the David vs. Goliath battle between Lush and Amazon. Lush, which refuses to permit Amazon to stock its products, asserted that (among other claims) by presenting users who searched for “Lush” with results containing products manufactured by Lush’s rivals, Amazon was infringing Lush’s trade mark. By doing so, Lush said, Amazon was misleading its customers into thinking that they were buying genuine Lush products.
In what is seen by some as a surprising result, the High Court has determined that, by directing consumers who searched for “lush” to similar products produced by Lush’s rivals, Amazon did infringe Lush’s trade mark. The Court pointed out that it would not be easy for the average consumer to establish that the goods were not genuine Lush products. The court also held that using “Lush” as a keyword within Google AdWords to prompt advertisements for Amazon’s website (which included references to “Lush soap”), amounted to infringement.
The Judge explained: “[The] right of the public to access technological development does not go so far as to allow a trader such as Amazon to ride roughshod over intellectual property rights, to treat trade marks such as “Lush” as no more than a generic indication of a class of goods in which the consumer might have an interest.”
Lush has now registered “Christopher North” (the managing director of Amazon.co.uk) as a trade mark and are considering whether to start selling a range of new products using this new brand including a new shower smoothie described on the label as “rich, thick and full of it”. Mark Constatine, Lush’s co-founder, said that “This was to make a point about how upsetting it is to have something personal to you, used by someone else.” Lush’s reaction (though humorous!) doesn’t sufficiently emphasise how significant this judgment could be, not just for Amazon, but for many online retailers whose business models rely on controlling a user’s search process.
We are sure we haven’t heard the last of this case. Amazon has vowed to appeal the decision and we will continue to keep an eye on the case and report any updates in our blog.
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