Amazon Adword case decides it must Leave Lush Alone

In the latest of the Adword cases, cosmetic company Lush has taken on retail giant Amazon over its use of the term ‘Lush’.

Lush has previously refused to trade with Amazon as the ethical cosmetic brand allegedly disapproves of Amazon’s business attitude, particularly in relation to Amazon’s stance on UK taxation.

Although it did not sell Lush products, Amazon decided to bid on keywords containing the word ‘Lush’ on Google’s Adwords Service. Amazon also used Lush in its own website search engine to direct people to competitor products within its site.

Lush, who have an exclusive licence of the word ‘Lush’ in relation to cosmetics within the UK brought an action against Amazon as they believed that the Adwords and search function on the Amazon site devalued their trade mark.

Amazon argued that it was common practice in the online retail world for websites to direct customers to similar or competing products and that their customers would soon realise that the product they were viewing were not Lush products.

The judge rejected this view. He believed that the average consumer trusted Amazon as a retailer of a large variety of products and that they would expect that if Amazon was advertising using the brand name of a product then Amazon would sell that brand. He further said that the average consumer would not realise that the use of the brand name was a marketing ploy and the products they were looking to buy were a different brand.

This judgement is the latest in a series of cases concerning the use of Adwords and provides a cautionary warning for online retailers when using trade marks in searches and advertising. It does, however, also promote the value in a properly registered and protected trade mark.

If you would like advice or assistance with registering or protecting a trade mark, contact the Chadwick Lawrence trade mark team on 01484 519999 or by email at rachelmain@chadlaw.co.uk