Amazon hit with EU-wide general ban on infringing Lush trade marks despite protestations

John Baldwin QC, sitting as a deputy High Court judge, imposed a general injunction against the infringement of Lush's trade marks by Amazon anywhere in the EU after previously finding Amazon liable for infringement of the Lush's trade mark rights earlier this year.

In February the judge ruled that Lush was entitled to prevent Amazon using its trade mark to promote rival goods for sale on Amazon's website and via Google. He found that Amazon infringed those rights when it suggested to users of its internal search engine, and in sponsored search results displayed in Google's search index, that Lush goods were for sale on its site when in fact they were not.

Following that ruling the two companies tried to negotiate the terms and scope of a ban on future infringement by Amazon of Lush's trade mark rights. However, they failed to reach agreement and that issue was passed back to the High Court to provide a ruling on.

Amazon argued that the scope of the injunctive relief owed to Lush should be limited. In particular it claimed that it was "technically difficult" for the company to avoid infringing Lush's rights and that Lush's bid for a general, widespread injunction to be set against future infringement "went to the core of its business model" and "attacked Amazon's philosophy of offering the widest and best possible choice to its consumers and ... placed a fetter on those customers' rights and freedoms to be informed".

However, the High Court judge rejected Amazon's complaints.

"In the light of that approach and in view of the way Amazon has approached the interpretation of my judgment to date balanced against the rights of Lush as well as those of various third parties, I think the correct exercise of discretion is to grant the injunction in general form," John Baldwin QC said.

Amazon further argued that the injunction should only apply to future infringements in the UK, citing the fact that the High Court had only ruled on infringements concerning the operation of its amazon.co.uk website in its February ruling. However, the judge said the general injunction should apply across the whole of the EU.

"I have found that the operation by [Amazon's EU-based business] of the UK site is an infringement of trade mark and concluded that such should be restrained by injunction," John Baldwin QC said. "In my judgment that injunction should be effective throughout the EU, irrespective of which web site [Amazon's EU-based business] chooses as its vehicle for trade."

Amazon's bid to delay the injunction against infringement failed, but it was successful in obtaining a delay against the application of another part of the High Court judge's order which was that the company publish a notice on pages of its website for one month to publicise the fact it infringed Lush's trade mark rights.

The publicity order should only take effect after the Court of Appeal decides whether to hear an appeal or not and, in the event that it does, until after the appeal is ruled on, the judge said.