Cosmetic Warriors Ltd & Anor v amazon.co.uk Ltd & Anor

Cosmetic Warriors Ltd & Anor v amazon.co.uk Ltd & Anor

Amazon's use of the 'Lush' mark in Google AdWords sponsored ads that display the mark and on its own website in drop-down menus and related searches constitutes use in the course of trade affecting the origin, advertising, and investment functions of the trade mark, and thus infringes Lush's rights. Both Amazon entities acted in concert and are joint tortfeasors. The E-Commerce Directive defence does not apply to the acts complained of.

Parties
Claimant: Cosmetic Warriors Limited; Claimant: Lush Limited; Defendant: Amazon.co.uk Limited; Defendant: Amazon EU SARL
Jurisdiction
England and Wales
Judgment Date
10 February 2014
Procedural Posture
Intellectual Property Trade Mark Infringement / Judgment After Trial
Outcome
Claim for trade mark infringement succeeds in part; joint tortfeasance established.
Legal Topics
Trade Mark Infringement, Keyword Advertising, Online Marketplace Liability, Joint Tortfeasance, Functions of a Trade Mark
Intellectual Property Trade Mark Law E Commerce Trade Mark Infringement Keyword Advertising Online Marketplace Liability Joint Tortfeasance Functions of a Trade Mark

Case Brief

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Parties

Cosmetic Warriors Limited

Claimant

Lush Limited

Claimant

Amazon.co.uk Limited

Defendant

Amazon EU SARL

Defendant

Procedural Posture

Intellectual Property Trade Mark Infringement / Judgment After Trial

Legal Issues

  1. 1 Whether Amazon's use of the 'Lush' trade mark in Google AdWords and on its own website constitutes trade mark infringement under Article 5(1)(a) of Directive 2008/95/EC and Article 9(1)(a) of Regulation (EC) No 207/2009
  2. 2 Whether Amazon's conduct damages the origin, advertising, and investment functions of the Lush trade mark
  3. 3 Whether Amazon is liable as a joint tortfeasor

Ratio Decidendi

Amazon's use of the 'Lush' mark in Google AdWords sponsored ads that display the mark and on its own website in drop-down menus and related searches constitutes use in the course of trade affecting the origin, advertising, and investment functions of the trade mark, and thus infringes Lush's rights. Both Amazon entities acted in concert and are joint tortfeasors. The E-Commerce Directive defence does not apply to the acts complained of.

Court Disposition

Claim for trade mark infringement succeeds in part; joint tortfeasance established.

Orders

  • Declaration of infringement against both Defendants for specified uses of the 'Lush' mark
  • Injunction to restrain further infringing acts