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The Claimants, who I will call Lush, are the manufacturers and suppliers of cosmetics under the Lush brand. Lush is well known for its colourful soaps and also for its bath bombs. I was told that Lush invented the bath bomb and originally was closely associated with that name.
The Defendants, who I shall call Amazon, are part of an online shopping group which trades under the Amazon brand. Amazon contends that it is the largest online shopping retailer in the world. It sells via its website both its own goods and the goods of third parties.
The Claimants are, respectively, the registered proprietor and exclusive licensee of Community trade mark number 1388313 for the sign Lush in respect of cosmetics and toiletries, including soap, in class 3, and the action is for infringement of trade mark. The first Claimant owns other trade marks as well, but it was common ground that I need consider only this one for the purposes of determining liability. Originally there claims under Articles 5(1)(a) and 5(2) of the Directive (Articles 9(1)(a) and 9(1)(c) of the Regulation Directive 2008/95/EC ) and passing off but only the first claim was maintained by the end of the hearing. At one point there was a counterclaim for invalidity of the registration based on lack of distinctive character but this was dropped well before the hearing. Council Regulation (EC) No 207/2009
The second Defendant operates the website at www.amazon.co.uk and the first Defendant operates fulfilment centres located in the UK as well as offering logistic services to the second Defendant. Although Amazon is a world wide brand, this action concerns only the operation of the UK site. Up to the present it has not been possible to buy the Claimants' products from www.amazon.co.uk. However Amazon do sell certain Lush branded products, including Lush Hair Extensions (from the Beauty Department), from a third party supplier.
Lush alleges that both Defendants are joint tortfeasors in connection with the matters complained of, that they are each party to a common design to infringe the Lush trade marks. Amazon accepts that any order of the court will be satisfied jointly by both Defendants, but denies the allegation. This is a matter to which I will return. Neither side appeared to contend that the allegation had much significance in the great scheme of things, but Amazon were concerned to establish that it failed on the facts. Finally, in addition to a general denial of infringement, Amazon relies on