December 9, 2013

David vs. Goliath: Lush takes on Amazon in trade mark battle

Lush co-founder, Mark Constantine, a critic of Amazon’s trading practices and tax structure refuses to allow the retail giant to sell Lush products. Amazon, it seems, is using its search field results to direct customers to alternative cosmetic products. When an Amazon user searches for “lush”, the search engine generates results containing goods not manufactured by Lush but by Lush’s rivals. Lush claims that these search results divert potential customers away from Lush’s business to rival cosmetic companies, which amounts to infringement of its trade marks.

To succeed with a claim for trade mark infringement, Lush will need to establish that Amazon is using Lush’s trade mark (or a mark sufficiently similar) and that a likelihood of confusion is created. James Worrall of our Technology and Media Team comments:

“It seems clear that Amazon are using Lush’s trade mark but whether a likelihood of confusion is being created is less certain. Consumers searching for Lush products are currently greeted by products by Bomb Cosmetics. For Lush to establish that this will confuse customers seems a tall order. The products that appear are clearly labeled as Bomb Cosmetics and there isn’t an obvious insinuation that these are linked to Lush . With the ruling expected next year, it will be particularly interesting to see the result in the aftermath of the decision in the dispute between Marks & Spencer and Interflora. In that case, Marks & Spencer’s use of “Interflora” as a Google AdWord to promote its own flower services was deemed to amount to the infringement of Interflora’s trade marks. What will happen in Lush vs Amazon remains to be seen; we’ll keep an eye on this case and report in our blog.”

If you have any burning questions on brands or trade marks, contact us now to see how our Intellectual Property lawyers can help. Call 01225 730100 or e-mail [email protected].

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