Lush Cosmetics has won its high-profile trademark battle with Amazon, with the High Court ruling against the retail giant’s use of the word ‘lush’ in its search marketing.
Insider Media covered the story,
The cosmetics business, which is headquartered in Poole, took legal action against Amazon.co.uk and Amazon EU after complaining that the retailer was infringing its trademark.
Lush does not permit its cosmetics to be sold on Amazon.
However, visitors who typed ‘lush’ into the search box on its website were shown products by rival companies. Amazon also ran a Google AdWords pay-per-click marketing campaign showing alterative cosmetics for keywords featuring the word ‘lush’.
The High Court decided that the average consumer would not be able to ascertain that goods identified by Amazon’s online search results were unconnected to Lush.
TheLawyer.com covered it saying,
The fight was particularly vicious due to Lush’s high-profile contempt for Amazon’s business practices – the company refuses to sell its products on Amazon’s site because of its attitude to UK tax, among other things. The court heard that it refused to sell on Amazon as it felt the decision would damage its ethical brand.
Baldwin QC said: “Lush is a successful business which has built up an image of ethical trading. This is an image which it says it wishes to preserve and it has taken the decision not to allow its good to be sold on Amazon because of the damage that it perceives there would be to that reputation.”
We have seen these disputes before and the decision went the other way, TechDirt wrote in July 2013 about 1-800 Contacts Vs Lens.com
With this list in mind, you can see why I hate the 1-800 Contacts v. Lens.com lawsuit. 1-800 Contact has spent enormous amounts on legal fees—at least $650k as of 2010–pursuing Lens.com for competitive keyword ads that had generated $20 in profit for Lens.com (no, that’s not a typo) and, at maximum, a few tens of thousands of dollars in revenue for Lens.com affiliates. All of this litigation is predicated on the initial interest confusion doctrine, an overly amorphous doctrine that no one can define or find any scientific support for, and which has been has been a loser in court for many years. To top it off, 1-800 Contacts had hypocritically engaged in competitive keyword advertising itself.
After 6 years in court, the case isn’t over yet.
…
