Lifestyle Equities owned UK/EU trade marks for ‘Beverly Hills Polo Club’. Amazon marketed identically branded US goods on its USA website to UK consumers. The Supreme Court held Amazon’s USA website targeted UK consumers, constituting trade mark infringement, dismissing Amazon’s appeal against the Court of Appeal’s decision.
Background
The respondents, Lifestyle Equities CV and Lifestyle Licensing BV (collectively ‘Lifestyle’), owned and licensed UK and EU registered trade marks comprising the words ‘Beverly Hills Polo Club’ and an associated logo featuring a horse and rider device. These marks were registered in respect of various consumer goods including clothing. Commercially unrelated parties owned corresponding US trade marks used in connection with identical goods (‘the US branded goods’). Lifestyle had never consented to the marketing of the US branded goods in the UK or the EU.
The appellants, various Amazon group companies (collectively ‘Amazon’), marketed and sold the US branded goods on its USA-based website, Amazon.com. It was common ground that marketing of US branded goods on Amazon’s UK website (Amazon.co.uk) constituted infringement. The dispute that persisted concerned exclusively Amazon’s use of its USA website.
The events in question occurred before the UK left the EU, and the proceedings commenced before IP Completion Day (31 December 2020). UK trade mark law was therefore substantially governed by EU legislation and jurisprudence, specifically the EUTM Regulation (2017/1001) and the Trade Marks Act 1994.
The Issue(s)
Two principal issues arose before the Supreme Court:
1. Targeting
Whether Amazon’s USA website, in advertising and offering for sale the US branded goods, targeted consumers in the UK such that there was a ‘use’ of the marks within UK territory in the course of trade, thereby constituting infringement under article 9(2)(a) of the EUTM Regulation and section 10(1) of the Trade Marks Act 1994.
2. The Blomqvist Issue
Whether, independently of targeting, the sale and delivery of US branded goods from the USA website to UK consumers constituted trade mark infringement under the principle established in Blomqvist v Rolex SA (Case C-98/13).
The Parties’ Arguments
Amazon’s Position
Amazon argued that its USA website was primarily directed at US consumers and that UK-oriented features (such as the ‘Deliver to United Kingdom’ message) were merely designed to make the website user-friendly for any non-US consumer who happened to visit it. Amazon relied on the facts that its USA website advised UK consumers about the availability of the UK website, that delivery times and prices were generally higher via the USA website, and that statistically very few sales of US branded goods were made to the UK. Amazon contended that the Court of Appeal had applied an impermissibly low threshold for targeting, one that would catch virtually any foreign website from which a UK consumer could purchase goods for delivery.
Lifestyle’s Position
Lifestyle contended that Amazon’s USA website clearly targeted UK consumers through a series of deliberate design features, including automatically detecting UK IP addresses and displaying delivery options specifically for the United Kingdom throughout the consumer’s journey. Lifestyle also relied on the Blomqvist doctrine, arguing that sale and delivery to UK consumers constituted infringement regardless of targeting.
The Court’s Reasoning
Legal Framework for Targeting
The Supreme Court affirmed the principles summarised by the Court of Appeal in Merck KGaA v Merck Sharp & Dohme Corpn [2017] EWCA Civ 1834 and Argos Ltd v Argos Systems Inc [2018] EWCA Civ 2211. Lord Briggs and Lord Kitchin stated:
We see no reason to qualify any part of these summaries and we would affirm them as correct.
The Court elaborated on four aspects: (i) the appropriate perspective is that of the average consumer, who is reasonably well informed and reasonably observant; (ii) the question is whether the average consumer would consider the website directed at them, requiring a multifactorial assessment; (iii) subjective intention of the trader is not necessary but, if established, can ‘ease the path’ to a finding of targeting; and (iv) no ‘single meaning’ is required—it suffices that a significant proportion of relevant consumers would consider the website directed at them.
The Multifactorial Assessment
The Court conducted a detailed, sequential examination of the USA website from the perspective of an average UK consumer, beginning with the landing page and progressing through product pages to the ‘Review your order’ page.
The Court identified multiple features strongly indicative of targeting:
- The ‘Deliver to United Kingdom’ message appearing automatically on the landing page and repeated on almost all subsequent pages for any consumer with a UK IP address.
- The pop-up box stating: ‘We’re showing you items that ship to United Kingdom’, with subsequent product pages specifically labelling which goods were available for UK delivery.
- The option to convert all prices to sterling at a current exchange rate.
- The ‘Review your order’ page, populated by Amazon with UK-specific delivery dates, prices, and exchange rates—constituting an offer for sale to a consumer at a UK address.
Lord Briggs and Lord Kitchin concluded:
In our view, balancing the relevant facts about Amazon’s marketing and offer for sale of the US branded goods on its USA website does show with reasonable clarity that it was targeting the UK as a territory, ie targeting consumers accessing its USA website from the UK. This is because the factors favouring that conclusion greatly outweigh the factors which might be said to point in the opposite direction.
Rejection of Countervailing Factors
The Court systematically addressed the factors relied upon by Amazon:
- The message on the landing page suggesting use of the UK website was ‘expressed only as an option’ and not repeated on subsequent pages.
- Default US dollar pricing was a ‘very weak’ contrary indicator given the prominently displayed option to convert to sterling.
- Higher delivery charges and times compared with the UK website did not withstand scrutiny, particularly as the average consumer would not undertake multiple cross-website comparisons and the point had ‘no force at all in relation to products only available on the USA website’.
- Low volumes of UK sales would be ‘entirely invisible to the average consumer’ and ‘the degree of relative success is not a reliable pointer to targeting’.
- Lifestyle’s subjective motive in bringing proceedings was ‘not even a relevant factor to be taken into account’.
Errors by the Trial Judge
The Supreme Court found that the trial judge had made material errors including: failing to analyse the website pages in sufficient detail from the consumer’s perspective; treating the fact that the website was primarily directed at US consumers as a weighty factor against UK targeting; wrongly treating the UK-oriented features as merely making the site ‘painless and easy’ for non-targeted consumers; giving excessive emphasis to delivery charge differentials; and wrongly taking into account Lifestyle’s subjective motives. Lord Briggs and Lord Kitchin stated:
This is one of those perhaps unusual cases where, for whatever detailed reasons, the judge made material errors in the way he arrived at his evaluative conclusion and also got the answer wrong… We consider that an affirmative answer to the targeting issue was the only one available.
Errors by the Court of Appeal
Although the Court of Appeal reached the correct conclusion, the Supreme Court identified some flaws in its approach, including working backwards through the website starting from the ‘Review your order’ page, applying a potentially too simplistic analysis, and not adequately distinguishing between consumer-supplied and Amazon-generated information. Lord Briggs and Lord Kitchin noted:
There is some force in this criticism about the low threshold applied by the Court of Appeal. It is hard to imagine any online sales website (for delivery of goods to the UK from abroad) having a ‘Review your Order’ page significantly different from that used by Amazon on its USA website.
The Supreme Court therefore conducted its own fresh assessment rather than simply affirming the Court of Appeal’s reasoning.
The Blomqvist Issue
Having concluded that there was targeting of UK consumers, and given Amazon’s concession that targeted sales constituted infringement, the Supreme Court declined to decide the Blomqvist issue. Lord Briggs and Lord Kitchin stated:
There is an air of unreality about addressing a doctrine about non-targeted sales in the context of our conclusion that, on the facts of this case, the relevant sales were targeted.
The Court also expressed concern about uncertainties in the underlying facts of Blomqvist itself, noting the absence of an Advocate General’s opinion and uncertainty about the contractual terms of the sale in that case.
Practical Significance
This decision is of considerable importance for international e-commerce and trade mark law. It establishes with authority that a foreign website which automatically detects a consumer’s location and configures itself to display goods available for delivery to their territory, with localised delivery options and currency conversion, will be treated as targeting consumers in that territory for the purposes of trade mark infringement. The judgment affirms and elaborates the targeting principles from Merck and Argos, providing detailed guidance on the multifactorial assessment courts must undertake. Crucially, it makes clear that automated geo-location features are not neutral—they are inserted ‘by design’ and constitute evidence of targeting, irrespective of whether the website is ‘primarily’ directed at another territory. The decision also reaffirms the constraints on appellate interference with evaluative findings while demonstrating that intervention is warranted where identifiable flaws undermine the cogency of the trial judge’s conclusion. The Blomqvist question—whether non-targeted sales to EU consumers from foreign websites independently constitute infringement—remains open for future determination.
Verdict: The Supreme Court unanimously dismissed Amazon’s appeal. The Court held that Amazon’s USA website did target consumers in the UK in its marketing and offer for sale of the US branded goods, thereby infringing Lifestyle’s UK and EU trade marks. The injunction granted and the order relating to an enquiry made by the Court of Appeal were to remain in place.
Source: Lifestyle Equities CV and another v Amazon UK Services Ltd and others [2024] UKSC 8
