Lush takes Amazon to court over trade mark infringement

Lush,a cosmetics company which has its headquarters here in the UK is taking Amazon to court over trade mark infringement.

Lush openly support using charity work, vegetarian ingredients and the non- testing of animals. The company do not allow their products to be sold on Amazon, as they disagree with the company’s morals. Lush also support’ UKuncut’, an anti-tax avoidance group whilst ironically, Amazon have made the news this year for allegations of tax avoidance. Upon typing ‘Lush’ into the search field of the Amazon website, a consumer is directed to rival cosmetic products which Lush complains is a infringement of their trade mark.

The allegations that are being made against Amazon are similar to the circumstances in the Interflora v Marks and Spencer case (Interflora Inc v Marks & Spencer Plc [2013] EWHC 1291) that was decided earlier this year. The decision of this case found that using Interflora’s “signs had an adverse effect on the origin function of the trade marks because a significant proportion of the consumers who searched for those signs were led to believe, incorrectly, that the retailer’s flower delivery service was part of the competing network”.

Marks and Spencer used keyword advertising to promote its flower delivery service using the Google AdWords referencing service, meaning that when internet users entered “Interflora” as a search term in the Google search engine an advertisement for Marks and Spencer’s flower delivery service would appear, which was held to be an infringement of Interflora’s trade mark.

The effect of this decision means that internet giants will not be able to get away with entering competitor’s names into their Adwords service, enticing customers away from another brand and potentially confusing customers as to the source of the product. If Lush relies on the’ Interflora case’ it is likely that they will have a successful trade mark infringement case against Amazon. The decision is to be made next year.

Written by Saowanee Kristin, an IP post-graduate student on work experience at Lawdit

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