Supreme Court finds Amazon’s US website targeted UK consumers, infringing UK and EU trade marks


“Today’s Supreme Court decision does not alter the legal test for targeting. But, in a pragmatic assessment of the facts, the Supreme Court has determined that Amazon’s US website does target UK consumers and can no longer do so going forward. Given the scale of Amazon’s business, this is of huge commercial significance.

“By weighting the various factors traditionally taken into account in the multifactorial factual assessment, the Court reached a decision which reflects how real-life consumers are likely to react to the US Amazon website. This is not a theoretical decision but one which will resonate with the real-life consumer. For example, although notionally stating that international delivery should not be determinative of targeting, the Court was nevertheless heavily influenced by the fact that the US Amazon website automatically alerted consumers with a UK IP address to the availability of UK delivery at multiple points during the browsing experience. Likewise, less weight was given to the fact that UK consumers could expect higher delivery charges and longer delivery times when ordering from the US website: this was not deemed to indicate that the US website was not targeted at UK consumers.

“Rightsholders will be encouraged by the decision. It prevents Amazon from being able to offer for sale goods on its US website to UK consumers. This gives control back to rightsholders over where their goods are sold. It follows that other international online retail platforms will also reassess the way in which they are offering goods for sale to UK consumers and, if there is a risk that their activity might also be deemed to target UK consumers, it too may cease.

“It also opens opportunities for rightsholders to argue more widely (i.e. not just against large online retail platforms, but against any extraterritorial website) that factors which reflect real consumer behaviour in a rapidly developing online environment should be given greater weight in the assessment of targeting. For example, I would like to see an argument that the currency in which a product is made available is no longer relevant to targeting given the proliferation of fintech solutions which readily enable ordinary consumers to make payments in a foreign currency.

“Finally, it cautions sophisticated online retail platforms against using their technological solutions – in this case, automatically to promote the availability of UK delivery to users with a UK IP address – in a way which is detrimental to rightsholders’ territorial interests, rather than protective (by implementing geoblocking).”

Expert reaction provided by Temple Bright partner Gina Lodge and shared on the LexisNexis website.

This article is not legal advice, which should be obtained before taking any decisions or actions in the areas covered. Please do get in touch if you would like an initial discussion of your situation.

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