Lifestyle Equities CV and another v Amazon UK Services Ltd and others

A foreign website uses a trade mark within the protected territory when its advertisements or offers are targeted there. Targeting is assessed objectively from the perspective of reasonably well-informed and circumspect average consumers, by evaluating all relevant circumstances and the consumer’s experience of the website. Mere accessibility is insufficient, while subjective intention may be relevant but is not essential.

A website may target several territories even if it is primarily directed elsewhere. Location-responsive pages, identification of goods available for local delivery, local delivery terms and payment in local currency may establish targeting. It is enough that a significant proportion of relevant consumers would regard the website as directed at them; the court need not identify a single meaning.

Lifestyle Equities CV and another v Amazon UK Services Ltd and others concerned US-branded goods bearing signs identical to trade marks owned or licensed by Lifestyle in the UK and EU. The goods were lawfully sold in the USA through Amazon’s US website, but Lifestyle alleged that Amazon’s advertisements, offers and sales infringed its UK and EU marks by targeting consumers in those territories.

The High Court rejected the targeting claim after trial: [2021] EWHC 118 (Ch); [2021] FSR 19; [2021] ETMR 27. The Court of Appeal allowed Lifestyle’s appeal and held both that the website targeted UK consumers and that sales to UK consumers could infringe independently of targeting: [2022] EWCA Civ 552; [2023] Bus LR 1010.

The central issues were whether Amazon’s US website objectively targeted UK consumers and whether infringement could arise from a non-targeted foreign sale to a UK or EU consumer.

1. Appeal dismissed unanimously. Lord Briggs and Lord Kitchin delivered the judgment, with which Lord Hodge, Lord Hamblen and Lord Burrows agreed. Amazon’s advertisements and offers for the US-branded goods on its US website targeted consumers in the UK. They therefore constituted use of the signs in the protected territory in the course of trade.

2. Targeting is assessed objectively from the perspective of the average consumer in the protected territory. The court must conduct a multifactorial evaluation of all relevant circumstances. Important matters may include the appearance and content of the website, how it responds to the consumer’s location, whether goods can be purchased and delivered to that territory, and the manner in which purchase and delivery are arranged. Mere accessibility of a foreign website is insufficient.

3. The trader’s subjective intention to target the territory need not be established. If proved, it may nevertheless assist the objective assessment. Nor must the court find a single meaning: it is sufficient that a significant proportion of reasonably well-informed and circumspect consumers would regard the website as directed at them.

4. Amazon’s website was designed to respond to a UK IP address. It repeatedly displayed delivery to the United Kingdom, identified goods available for UK shipment, offered sterling pricing and generated UK-specific delivery dates, charges and exchange rates. These features greatly outweighed the optional reference to Amazon’s UK website, default dollar pricing, potentially greater delivery costs and times, and the low number of UK sales. A website may target the UK even though it is primarily aimed at US consumers.

5. The High Court’s evaluation contained material errors. It insufficiently examined the consumer’s journey through the website, gave undue significance to the website’s primary US orientation, relied on flawed reasoning about delivery costs and times, and wrongly considered Lifestyle’s motive for bringing proceedings. The Court of Appeal reached the correct conclusion, although its analysis placed excessive emphasis on the final order-review page. The Supreme Court therefore conducted the targeting assessment afresh.

6. An appellate court reviewing an evaluative decision does not repeat the balancing exercise merely because it might reach another conclusion. It must identify a flaw such as a gap in logic, inconsistency or omission of a material factor which undermines the conclusion. That threshold was met here.

7. The court declined to decide whether a foreign sale to a UK or EU consumer can infringe without targeting under the doctrine associated with Blomqvist v Rolex SA. Targeting had been established, and uncertainties concerning the facts and contractual arrangements in that decision made a broader ruling inappropriate. The Court of Appeal’s injunction and order for an inquiry remained in force.

• United Kingdom Supreme Court: Amazon’s appeal was dismissed unanimously: [2024] UKSC 8. The Court of Appeal’s injunction and order for an inquiry remained in place.
• Court of Appeal: Lifestyle’s appeal was allowed. The court held that Amazon’s US website targeted UK consumers and that the relevant sales also infringed under its interpretation of the non-targeted-sales doctrine: [2022] EWCA Civ 552; [2023] Bus LR 1010.
• High Court, Chancery Division: Following trial, Green J rejected the targeting claim and the alternative claim based on sales to consumers in the UK or EU: [2021] EWHC 118 (Ch); [2021] FSR 19; [2021] ETMR 27.