Amazon and trademark infringement

Lush, the manufacturer and supplier of cosmetics and soaps and the proprietor of the Community trademark LUSH, has successfully claimed against the online retailer Amazon for trademark infringement.

The essence of the claim in Cosmetic Warriors Ltd v Amazon.co.uk Ltd was that if a consumer were to type in the word ‘Lush’ into the search box on Amazon, the search results would bring up a list of products that were not Lush products but that were products that Amazon hoped would interest a consumer searching for Lush products. The case also concerned Amazon’s use of the search term ‘Lush’ in Google’s Adwords service, Amazon having bid on the ‘lush’ keyword so as to trigger a sponsored link advertisement on the Google results page whenever a consumer typed ‘lush’ into the search box.

The High Court held that Amazon infringed the LUSH mark by using ‘Lush’ as a keyword within the Google Adwords service to trigger advertisements for the Amazon site, which included references to ‘Lush’. The court considered that the average consumer seeing the advertisement would expect to find Lush products on the Amazon site. In fact, Lush products were not available on the Amazon site…

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