Cosmetic Warriors Ltd & Anor v Amazon.co.uk Ltd & Anor

A final injunction should be proportionate, sufficiently effective to cure the infringement established, and should not create an unjustified barrier to legitimate trade. Technical difficulty or commercial inconvenience will not justify narrower relief where the defendant can comply. Election-stage disclosure should be limited to information reasonably necessary to choose between damages and an account of profits. Publicity orders are discretionary, while confidentiality orders require specific justification against open justice.

The court had previously found that Amazon.co.uk Ltd and Amazon EU SARL infringed Lush trade marks through sponsored advertising and presentations on the Amazon website. This judgment determined consequential relief and procedural orders, including the form and territorial scope of the injunction, election disclosure, publicity, costs, confidentiality, permission to appeal and stays.

1. The court rejected Amazon’s specific United Kingdom-only injunction and granted a general injunction. The relief was to be effective throughout the European Union in relation to the Community Trade Marks because the second defendant’s infringement through the UK site should be restrained regardless of which European website it used. No special circumstances justified territorial limitation: compare DHL Express France SAS v Chronopost SA (C-235/09) [2011] FSR 38 and Interflora v Marks & Spencer No 2 [2014] FSR 2.
2. The hypothetical case in which Amazon returned third-party products after a consumer searched for Lush had not been tried. Use of the mark in the course of trade would be established, but whether the Google France test was satisfied depended on the actual webpage returned. The court declined to decide that issue without an example or further argument.
3. Election disclosure should be proportionate and no more than reasonably necessary to choose between an account of profits and an inquiry as to damages. The court adopted the simpler approach in Brugger v Medicaid [1996] FSR 362 and Vestergaard v Bestnet [2010] FSR 2. Amazon was ordered to provide information about infringing acts, sales, sums received and estimated costs, but independent audit was disproportionate.
4. Further national press advertising was unnecessary, but a short hyperlink notice was justified on the UK website for one month on pages returned in response to searches for Lush. A homepage notice and publication on other European sites were not justified. The approach in Lilly Icos Ltd v Pfizer Ltd (No 2) 2002 EWCA Civ 2, [2002] 1 WLR 2253 was applied to confidentiality.
5. Amazon was ordered to pay 90% of Lush’s costs on the standard basis. Section 25(4) of the Trade Marks Act 1994 did not require a deduction from liability costs, although the position might differ for pre-registration damages or profits. Permission to appeal was refused. The injunction was not stayed, subject to a cross-undertaking, but the publicity order would be stayed if permission to appeal were granted.

The court stated that it had handed down its liability judgment on 10 February 2014. No lower-court decision or appellate judgment is stated.