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2 December 2013Trademarks

Lush and Amazon trademark dispute reaches court

A trademark case between UK cosmetics company Lush and online retailer Amazon surrounding search engine results and the use of Google AdWords has been heard in the UK High Court.

In the case, instigated by Lush suing under the name Cosmetic Warriors Ltd, the company alleges that when typing the term ‘Lush’ into Amazon’s search bar, results are generated which show similar products to Lush’s but not its official line.

In August, WIPR exclusively reported on the case and revealed it was due to go trial before the end of the year.

Originally set-up in 1994, Lush now operates more than 800 stores in 51 countries.

It produces and sells handmade cosmetic products, including soaps, shower gels and shampoos but does not let Amazon sell its products.

Lush also says Amazon had bid on the Google AdWord for 'Lush Bath Products', despite not selling any Lush products.

In a statement, Lush told WIPR that Amazon had been buying Google “and other search engine AdWords” for Lush and other “Lush related terms.”

"This is done to drive traffic to Amazon's website which does not sell Lush products,"it said.

“When people get to Amazon’s site and search for Lush, they are shown a competitor’s product. This, on a website designed for speedy transactions, can lead to customers mistaking other company’s products as being from Lush.

“This is not a theoretical risk as actual real customers have said they have been misled,” it added.

In a pre-trial hearing in August, Lush filed permission to introduce the results of two surveys it had carried in order to identify any customer confusion.

However, the surveys were rejected due to having “no real value” to a trial judge putting himself in the position of a consumer.

Lush added: “We have trademarks that we have built a reputation in over many years around the world. Lush is our house mark and our business is dependent upon it. We will always protect our name.”

Amazon did not respond to requests to comment.

The case has similarities with the Interflora v Marks & Spencer High Court ruling in May this year.

There, Mr Justice Arnold found that retailer Marks & Spencer’s’ use of ‘Interflora’ Google AdWords that produced search results for its flower delivery services did infringe trademarks belonging to an existing flower delivery company of the same name.

A judgement in the case is expected by January next year.

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