LUSH VS AMAZON
Sokratis Pissidis
Georgios Liarommatis
Stefan Gordon
Defending Lush Retail Ltd. for trademark infringement
Angela Russel
Ruhel Unu
Managing Technological Innovation
Contents
Executive Summary .............................................................................................................. 3
Introduction ........................................................................................................................... 4
Defending Lush ..................................................................................................................... 5
Conclusion ............................................................................................................................ 6
References ........................................................................................................................... 7
2
Executive Summary

Lush is a manufacturer of cosmetic supplies, including toiletries, soaps and
bath bombs.

Amazon the online shopping retailer sells their own designed products and
third party companies

Lush Retail Ltd. owns the trademark for “Lush” in regards to cosmetics,
toiletries and soaps.

Amazon is using the Google Ad Words service and bided to use the word
“Lush” as a decoy to sell similar and identical products.

When users typed in the word “Lush” in the search engine misleading ads
appear.

Lush Retail Ltd. is now suing Amazon for trademark infringement because
Amazon is using a trademarked word which is ‘Lush’.

Under the trademark law, the law states if any party uses an identical or
similar trademark for identical or similar products or service, in any way
without permission they are infringing the registered mark.

On the Google advertising policies help page, the prohibited contents section
clearly states under the misrepresentation of self-product or services.
(Google, 2015) “Google does not want users to feel mislead by ads that we
deliver”.
3
Introduction
‘Trademark’ is a term of property that is valuable to their owners, it is a marketing
tool for a company or someone who owns the rights to use a trademark because
trade mark help existing customer to find again the goods or services that they
bought before and in some cases can be useful to bring new customers. Trademark
indicates where the goods or services come from and is like a guarantee for the
consumer that they are purchasing an original product.
Amazon UK has infringed our client’s trademark. Amazon UK bided on Google Ad
Words service using our client’s trademark ‘LUSH’ to generate Ads. For example, if a
consumer searched for lush to find Lush products such as toiletries, cosmetics and
bath bombs the results on the top of the page will be advertisements by Google Ad
Words sponsored by Amazon UK referencing the trademark ‘LUSH’ advertising
products alternative to Lush’s as the given example below.
Lush Soap at Amazon.co.uk
www.amazon.co.uk/lush+soap
amazon.co.uk is rated *
Low prices on Lush Soap
Free UK Delivery on Amazon Orders
An average customer or user with difficulty will ascertain if the advertisement is
misleading or not. Amazon is a trusted online shop and many customers will think
that the advert is sponsored by Lush and not from a third party company while they
are expecting to find Lush products on a competitive price on Amazon.
The second IP infringement case that led the giant online retailer and the individual
cosmetics brand to the court is the misleading products suggested by the Amazon’s
website search tool. Amazon is using an analysis system according to each client’s
buying trends and behaviour. This system enables the automated suggestion of
alternative products when searching for a specific item or brand.
When a customer visited the Amazon website to search for Lush products, by the
time the letters Lu were typed on the online searching tool , an automated drop down
menu would appear to suggest products like ‘’Lush bath bombs’’. With further
clicking on the suggesting option the customer would be redirected to products
similar to Lush’s which in reality had nothing to do with the cosmetic’s Brand.
Moreover if a customer using the Amazon searching tool would type the full word
‘’Lush’’ in the bar then the site would reveal a line labelled as ‘’Related Searches’’.
This would suggest what other customers who have searched for Lush products in
the past have also shown interest in, giving as example the ‘’lush bath bombs’’. The
tool would also appear the word ‘’Lush’’ inside inverted commas.
4
Defending Lush
This court case is focused in the Ip infringement committed by amazon against Lush.
We will elaborate on the matter giving a deeper insight on why Lush is entitled to win
this case and have their brand name restored.
Amazon is a huge online retailer but they have been illegally using the keyword
‘’Lush’’ in their website searching tool to suggest to potential customer’s products
that were described and presented as if they were Lush products. Those products
were not by any means connected to our company Lush. The customers were
allegedly being tricked into thinking that Lush has a partnership with Amazon
allowing their merchandise to be online. Therefore, we would like to have the word
Lush removed from the drop down menu of the Amazon’s site. This is a severe case
of infringement as well as continuous attempt to redirect potential customers away
from our products.
However, this wasn’t the first time that Amazon breached Lush’s ‘Trade Mark’ rights.
Amazon has successfully bid on our company’s brand name ‘’Lush’’ as a Google Ad
Word. When a user would type the word Lush in the online search engine then the
Amazon’s products would appear. This is misleading to the customers who would be
looking for official Lush products as with further navigation they would be redirected
to the Amazon marketplace. This is another example of how Amazon has been
illegally using our brand’s name to make profit and gain over clientele. We therefore
demand that Google would stop this infringement of our trademark and remove the
word ‘’ Lush ‘’ from their searches as well as prevent any link between Amazon and
Lush to be displayed after the word ‘’Lush’’ is used on the search engine.
According to azrights.com, Amazon did not just commit infringement offences to Lush but
they done it to a company that makes and sales watches that is known as ‘Multi Time
Machine’ (MTM). (Azrights Solicitors, 2010-2013), “Initially, the Los Angeles district court
held Amazon’s use of Multi Time Machine’s trademark created no likelihood of confusion.
However, on appeal the court did not agree with Amazon’s defence that this use did not
constitute “use in commerce” The 2-1 opinion from the 9th U.S. Circuit Court of Appeals in
San Francisco on Monday reversed a lower court ruling, and said high-end watchmaker
Multi Time Machine Inc. is entitled to a trial on its trademark allegations.
In a similar case, Interflora sued Marks and Spencer’s over brand bidding. This is also
fringing the trademark because Interflora’s costumers could be misled and buy flowers from
Marks and Spencer. They do this by using Google AdWords and having the keyword
‘’interflora’’ registered to them so that they can have their flower products appeared in the
search engine. Mr Richard Arnold, judge at the high court in London ruled that M&S's use of
the Interflora trademark to advertise its flowers and gifts range was trademark infringement.
This is no different to Amazon vs Lush as Amazon used Google AdWords in the same way
to advertise their own or third party cosmetic.
5
Conclusion
We have now taken an in depth look into the context in which Amazon have used
keyword advertising and their own Amazon search engine tool to mislead customers
into purchasing products that aren’t from Lush. Amazon’s use of our trade make
“Lush” keyword to trigger consumers landing on their website expecting to purchase
lush products, however this is not the case but rather customers will be shown
similar products which the average consumer wouldn’t be able to tell that these are
not authentic lush products. This has had devastating effects on the Lush in a
number of ways. Consumers are arriving on amazons website looking for lush
products however mislead to purchase third party product that are not of quality of
our Lush products this is dismantling our hard work in creating a product of quality
this has staining our Lush mark while Amazon attempts to sell third part products.
Moreover Amazon has been deliberately trying to take over Lush’s clientele by
registering the word ‘’Lush’’ as a keyword for the Google ad word service. This action
has been also been deemed infringing by the court because the average consumer
would be tricked into thinking that the displaying products are made by Lush. We
should all be concerned in the use of trademark keyword in keyword adverting and
website search tools, consumers are being misled when they are looking for a
certain product also business are losing income due to this problem. This problem
needs to cease giving trademark owners the freedom to build on their business
without having their consumers diverted to third party products with the use of the
trademark owner’s brand.
6
References

Google, (2015), AdWords policies,
https://support.google.com/adwordspolicy/answer/6008942?hl=en-GB [Accessed
26/10/15]

William Reed Business Media, (2015) Lush Sues Amazon over trademark
infringement, http://www.cosmeticsdesign-europe.com/Regulation-Safety/Lush-suesAmazon-over-trademark-infringement [Accessed 25/10/15]

Harbottle & Lewis LLP (2012-2015), Keywords and Ethics: Lush v Amazon,
http://www.harbottle.com/keywords-ethics-lush-v-amazon/ [Accessed 24/10/15]

Bird & Bird, (2015), Trade Mark infringement by keyword advertising and online
search results, http://www.twobirds.com/en/news/articles/2014/uk/trade-markinfringement-by-keyword-advertising-and-online-search-results [Asscess 24/10/15]

Azrights Solicitors, (2010-2013), Law Society of England & Wales, Trademark
Infringement Trail of Amazon Over Search, http://azrights.com/media/news-andmedia/blog/branding/2015/07/trademark-infringement-trial-of-amazon-over-searchresults/ [Accessed 24/10/15]

Reed Elsevier, (2014), Limited, Trading, Interflora v M&S – Adwords are ok says
Court of Appeal, http://blogs.lexisnexis.co.uk/wipit/interflora-v-ms-adwords-are-oksays-court-of-appeal/ [Accessed 2/11/15]

Brabners LLP, (2013-2015),Interflora wins trade mark infringement case against
Marks and Spencer http://www.brabners.com/news/interflora-wins-trade-markinfringement-case-against-marks-%26-spencer [Accessed 02/11/2015]

Simon Neville, (Tuesday 21st May 2013 17.29 BST),Guardian News and
Media,Interflora wins trademark case against Marks and Spencer,
http://www.theguardian.com/business/2013/may/21/interflora-wins-trademark-caseagainst-marks-spencer [Accessed 02/11/15]

Dan Levine, (Mon Jul 6, 2015 2:15pm), Amazon must face trademark lawsuit over
search results, http://www.reuters.com/article/2015/07/06/us-amazon-com-lawsuittrademark-idUSKCN0PG1VP20150706 [Accessed 02/11/15]
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