Lush – the toiletries and cosmetics brand, best known for its fizzy bath bombs, won its high court litigation and the public relations war. Lush won its claim for copyright infringement against Amazon earlier this week after Amazon allowed its site to be configured so that searches for “Lush” would find cosmetics and toiletries, not made by the chain.
Q&A from Hannah Basha, Legal Director in Hill Dickinson‘s Reputation Protection team
Why has this attracted media attention?
According to Lush, Amazon was unsympathetic to its case and it therefore decided that a win in the High Court was not enough. Reports state that Lush wanted to show Amazon how upset it was and registered the name of Amazon‘s UK managing director, Christopher North as a trademark for cosmetics. The chain has now launched a shower gel under the name “Christopher North” with the tagline “‘Rich, thick and full of it.”
Can Lush do that?
It can. Many celebrities trademark their own names to use commercially (such as Robbie Williams and Jamie Oliver) and there is no law against this. Unless Christopher North had already trademarked his own name for cosmetics (and as an online retailer, why would he?), or can argue that the registration is in bad faith, there is little he can do. Were he already well known in the shower gel industry then he may also be able to prevent the launch of the product if it traded off his goodwill.
What can retailers learn from this case?
It is as important to manage the communications around litigation as it is to manage the litigation itself, but this is often forgotten. The presentation of litigation to stakeholders and the public is often forgotten whilst clients and lawyers battle to protect legal rights. However, protecting legal rights is a worthless activity if, on the way, the retailer loses its reputation.
What can be done?
Firstly, it is essential to have a clear and authentic message for why proceedings have been brought, or why they are being defended. Lush has got its message out to the public and, whilst there are always two sides to every story, we have not heard Amazon‘s side at all. The reasons for litigating also need to engage stakeholders, who may wonder why time and manpower is being diverted.
Secondly, it is important to anticipate what information the public will have and at what stage in the litigation, including whether the media will be able to see the parties‘ arguments, documents and witness statements. It is possible to prevent the public from seeing parts of the case and parts of the evidence, but this needs to be thought through in advance. If documents are public, it is essential to consider this before they are filed as they can be published and quoted out of context. Anticipating what will come to the attention of the public will enable the team to deal with negative stories and potentially embarrassing side-shows.
Thirdly, it is important to accept that trials are likely to be conducted in public so consider communications with key media during the trial and prepare statements anticipating the realistic outcomes. The media moves quickly and it is often the first quote that they will publish rather than the best crafted one.
Can any steps be taken before Litigation to protect reputations?
All retailers recognise that they need to protect their reputations and brands, but many forget to protect those of their directors and senior officers. Whilst it is difficult in this case to see what more Lush could have done, there are numerous examples where directors are attacked in the mainstream press and by social media and this can have a negative impact on not only their reputation, but also the reputation of the brand.