Earlier this week the UK High Court ruled that Lush (Cosmetic Warriors Limited and Lush Limited), the well-known manufacturer and supplier of colourful soaps and the “bath bomb”, had successfully established infringement of its trade mark. It was held that an average consumer browsing on Amazon, the defendant in the proceedings, in search of Lush goods would be unable to ascertain that the goods identified within the Amazon search were not actually goods genuinely connected with Lush.
One part of the claim concerned the consequence of a consumer typing the word “lush” into the Amazon search facility. Such a search would lead the consumer onto a webpage with suggested “Bomb Cosmetics” and other similar products, none of which are in fact genuine Lush products. In fact, the Claimant’s Lush products are not for sale within the Amazon site despite the Lush registered trademark appearing.
In his judgment, John Baldwin QC noted that “the CJEU has indicated that infringement should be found where the average consumer may erroneously think that the goods advertised emanate from the trade mark proprietor”. In conclusion it was held that this use by Amazon damaged the origin function of the Lush trademark.
This decision will most likely deter online retailers from promoting alternative to products that they do not in fact sell. While Amazon had originally sought to counterclaim for invalidity of the Lush registrations this was not pursued and was dropped before the hearing.