Lush causes a stink in Amazon trademark fight

The High Court has ruled that Amazon breached the copyright of the ethical cosmetics firm.

by Elizabeth Anderson
Last Updated: 11 Feb 2014

Lush has taken on the might of internet giant Amazon and won. In something of a landmark case, it could now lead to internet retail giants being forced to stop promoting alternatives to products they do not sell.

The case centred on the fact that Lush does not allow Amazon to sell its products, as the husband-and-wife run company is critical of the way the US tech giant operates.

But when visitors to Amazon typed the word ‘Lush’ into its search field, they were directed to alternative cosmetic products sold through Amazon. The tech giant had also gone one step further by taking on the Google AdWord 'Lush Bath Products', despite not selling any.

Late last year, the company took action against Amazon claiming trademark infringement – Lush said that that nowhere in its advertising did Amazon make clear that it did not sell Lush’s products.

At the time, co-founder Mark Constantine said: ‘It's a way of bullying businesses to use their services. And we refused. We've been in the high court this week to sue them for breach of trademark. It's cost us half a million pounds so far to defend our business. Most companies just can't afford that. But we've done it because it's a matter of principle. They keep on forcing your hand and yet they don't have a viable business model. The only way they can afford to run it is by not paying tax. If they had to behave in a more conventional way, they would struggle.’

In a ruling yesterday the High Court found in Lush’s favour, saying the average consumer wouldn’t be aware that they were being directed away from Lush’s bath bombs and soap-based products.

The case means other online retailers could now be deterred from making suggestions for alternatives to products that they do not sell and restrict how they use Google.

It follows a similar dispute between Interflora and Marks & Spencer, which M&S lost last year after a 5 year battle. The High Court ruled that its use of ‘Interflora’ in Google AdWords to produce results for its own service infringed trademarks belonging to Interflora.

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