Form of injunctive relief to be imposed in trade mark infringement case

Alasdhair McDonald

Cosmetic Warriors Ltd v Amazon.co.uk Ltd concerned the form of injunction granted in a trademark infringement case in the context of keyword use. 

Amazon had been held to have infringed the community trade mark (“CTM”) LUSH (that also being the trading name of Cosmetic Warriors) via its use of the keyword LUSH in sponsored adverts on Google and on its own internal search function.  Broadly, this was because Amazon did not sell LUSH branded products. Instead, Amazon used keyword advertising and suggested search terms based on the word LUSH to drive users towards alternative products available on its website.  It was not made clear to the reasonably observant internet user that these alternative products were not LUSH branded products or products of Cosmetic Warriors. 

Whilst it was agreed that Amazon should be injuncted from infringing the LUSH mark, the precise form and scope of the order was disputed between the parties.  Cosmetic Warriors sought a general form of injunction preventing any infringement of the LUSH mark, whereas Amazon, citing technical difficulties relating to amending its website operations, requested the order take a narrower scope, preventing only those infringements set out in the judgment.  Additionally, Cosmetic Warriors argued that the injunction related to a CTM and so should be pan-EU, whereas Amazon felt that the injunction should relate only to its UK site, which was the subject of the litigation.  The judge granted a standard form, pan-EU injunction, holding that the technical difficulties cited by Amazon were essentially just commercial concerns and finding no reason to depart from the standard pan-EU injunction in respect of a CTM.

Cosmetic Warriors Ltd and another v Amazon.co.uk Ltd and another [2014] EWHC 1316 (Ch)

Post By Alasdhair McDonald (3 Posts)

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