Soapmaker Lush comes out on top in brush with Amazon

Lush, better known for making and selling soap than for their brushes, had a fairly vigorous brush with web-monsters Amazon and emerged victorious, this Kat learned today from his friend Simon Chapman (a partner at Lewis Silkin LLP, who acted for Lush in these proceedings). In a judgment handed down yesterday in Cosmetic Warriors Ltd and Lush Ltd v Amazon.co.uk Ltd and Amazon EU Sarl [2014] EWHC 181 (Ch), John Baldwin QC, sitting as a Deputy Judge, held that Lush established infringement of its trade mark on the basis that the average consumer, browsing the Amazon website in search of Lush's soap, would generally be unable to ascertain that the goods identified by Amazon’s online search results were not the goods of, or connected with, Lush. John Baldwin also held that
“this right of the public to access technological development does not go so far as to allow a trader such as Amazon to ride rough shod 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”.

This case, adds Simon, clarifies the extent to which third parties may use trade marks to generate sponsored advertisements within search engine results or within websites to direct web traffic to products which do not originate from the trade mark owner. It will deter online retailers from promoting alternatives to products that they do not sell and it will restrict how retailers use search engines on their own sites as well as third party search engines for marketing purposes [Merpel's not so sure. when you think how many retailers do promote alternatives to products that they do not sell, how much money they appear to make and how rarely any actions against them ever get to court, she thinks they'll need an awful lot more deterring than can ever be provided by a decision of a Deputy Judge which hasn't even made it on to the BAILII database].

What is significant is the fact that Lush, a thoroughly successful business, has built up a reputation for ethical trading which it sought to preserve by deciding not to allow its goods to be sold on Amazon because of the damage that it perceives there would be to that reputation by selling on the Amazon site.

You can read the decision in full here, or download it here.
Wash and brush-up here
How to make the best soap bubbles here
Soapmaker Lush comes out on top in brush with Amazon Soapmaker Lush comes out on top in brush with Amazon Reviewed by Jeremy on Tuesday, February 11, 2014 Rating: 5

2 comments:

  1. Well, it doesn't seem to have changed things on Amazon as of yet. How long will Amazon be given to implement this?

    ReplyDelete
  2. The judgment is up on BAILI http://www.bailii.org/ew/cases/EWHC/Ch/2014/181.html.

    Just checked on amazon.co.uk, and the infringing search results are still coming up for "lush". I'm curious how much time Amazon have to comply with the judgment, or is this pending appeal?

    ReplyDelete

All comments must be moderated by a member of the IPKat team before they appear on the blog. Comments will not be allowed if the contravene the IPKat policy that readers' comments should not be obscene or defamatory; they should not consist of ad hominem attacks on members of the blog team or other comment-posters and they should make a constructive contribution to the discussion of the post on which they purport to comment.

It is also the IPKat policy that comments should not be made completely anonymously, and users should use a consistent name or pseudonym (which should not itself be defamatory or obscene, or that of another real person), either in the "identity" field, or at the beginning of the comment. Current practice is to, however, allow a limited number of comments that contravene this policy, provided that the comment has a high degree of relevance and the comment chain does not become too difficult to follow.

Learn more here: http://ipkitten.blogspot.com/p/want-to-complain.html

Powered by Blogger.