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