Cosmetic Warriors v Amazon.co.uk Limited, High Court
The High Court has concluded that two out of three claims by Lush against Amazon for trade mark infringement should succeed. Lush successfully argued that Amazon’s purchase of the word “lush” through the Google Adwords service and Amazon’s search facility showing results for “lush cosmetics” amounted to trade mark infringement.
The Court decided that Lush’s claim should succeed for the following reasons:
1. On the first issue regarding Google Adwords, the Court decided that an average consumer would expect to find a Lush product for sale on Amazon’s website if a search result suggested this was the case. The judge stated that as Amazon sold a wide variety of products, the average consumer would not expect Amazon to advertise a product which it did not sell.
2. As to the results shown on Amazon’s website, whereby Amazon would suggest search results when users started typing into the search facility (such as “lu” would bring up “lush cosmetics” as a suggested result), the Court decided that Amazon could not distance itself from the results of its search engine. The Judge concluded that, “[Amazon] has used the sign as part of a commercial communication that it is selling the goods on its website” and that Amazon could not “rely on the wit of the consumer to get himself out of the trap that has been set”. The suggestion by Amazon’s search engine that lush cosmetics could be found was therefore likely to cause confusion and an infringement of the Lush trade mark.
This second point was a big issue for Amazon and could cause major issues for its business and the businesses of others, as search results are built on other consumer behaviour and it would be hard to alter the suggested search results in light of a possible trade mark infringement.
Lush failed on one point regarding search engine results for “bath bombs”. This was rejected as the Court felt that the average consumer would not be misled from these search engine results.