Amazon.com Held to Have Targeted Consumers in the United Kingdom

On 6 March 2024, the Supreme Court held that Amazon’s United States website targeted consumers in the United Kingdom when it advertised and offered goods bearing signs identical to Lifestyle’s marks. That targeting was use of the signs in the United Kingdom. The decision clarified the law rather than changing it. At paragraph 26, Lord Briggs and Lord Kitchin said of the Court of Appeal’s earlier summaries of the principles, “We see no reason to qualify any part of these summaries”, and then elaborated four points. The Court declined to decide whether a non-targeted sale can itself infringe.

The Facts

The respondents, two companies in the Lifestyle Equities group, owned and licensed respectively United Kingdom and European Union trade marks for BEVERLY HILLS POLO CLUB. Identical marks in the United States were, as Lord Briggs and Lord Kitchin recorded at paragraph 5, “owned by a commercially unrelated party”. Goods bearing those marks were offered on Amazon.com to consumers in the United Kingdom.

Those goods were also sold on Amazon’s United Kingdom website. At paragraph 6, they recorded that “it became common ground during the proceedings that this gave rise to infringements”. The live dispute therefore concerned the United States website alone, on which title and risk passed in the United States, and at paragraph 34 they noted that “the purchasers of the goods acted in a purely personal capacity and not in the course of trade.”

The First Instance Judgment

The claim was tried in the High Court. The judgment does not record the date on which the proceedings were brought. Before 31 December 2020, they had begun, as paragraph 7 records, and European Union trade mark law therefore governed them. Green J dismissed the claims in [2021] EWHC 118 (Ch). He concluded that the website was targeted at consumers in the United States and not the United Kingdom (at paragraph 52).

The Court of Appeal Decision

That conclusion did not survive appeal. The Court of Appeal allowed Lifestyle’s appeal in [2022] EWCA Civ 552, Arnold LJ giving the judgment. It held that Amazon.com targeted consumers in the United Kingdom, and that sales to them infringed even without targeting (at paragraphs 54 and 55).

The Supreme Court Decision

On 15 and 16 November 2023, the Supreme Court heard Amazon’s appeal, which raised two issues. The first was targeting. The second, the Blomqvist issue, was described at paragraph 33 as “whether there can be infringement by sale and supply from a foreign website without targeting”. Amazon accepted that targeted sales infringe.

On 6 March 2024, the Supreme Court dismissed the appeal. Lord Briggs and Lord Kitchin examined the customer journey at paragraphs 60 to 67. The pages showed “the message “Deliver to United Kingdom”” (at paragraph 61). Products were marked as available for delivery to the United Kingdom, and at paragraph 73 they described the order review page as “an offer for sale of the relevant goods to a consumer at a UK address”.

Against those features, the contrary factors were weak. Dollar prices were “a very weak one because of the prominently displayed option to change currency” (at paragraph 75). Lord Briggs and Lord Kitchin placed “very little weight” on the low volume of sales (at paragraph 78). Lifestyle’s motive was not “even a relevant factor” (at paragraph 79). At paragraph 83, they concluded that “an affirmative answer to the targeting issue was the only one available.”

The legal principle behind that conclusion is simple. A website targets a territory if the average consumer there would regard it as directed at them, judged objectively through “a multifactorial assessment of all the relevant circumstances” (at paragraph 28). Subjective intention need not be proved (at paragraph 30). It is enough that “a significant proportion of the relevant consumers” would think so (at paragraph 31). Mere accessibility is not enough (at paragraph 21).

By that measure, the Court of Appeal’s approach was “too simplistic” (at paragraph 86), yet it “got the answer right on targeting” (at paragraph 84). At paragraph 89, the Justices declined to decide the Blomqvist issue.

Key Takeaways

Several points of law follow. At paragraph 58, Lord Briggs and Lord Kitchin accepted that “Literally speaking, there has been no such use.” Targeting, however, depends on “what is done up to the moment” the contract is concluded (at paragraph 67). The place where title passes does not therefore decide the question. Further, at paragraph 82, they held that the judge erred in treating the website’s primary market as weighty against targeting elsewhere.

The holding is also bounded, since at paragraph 80 it applies “provided of course that each product thus displayed was marked as available for shipment to the UK.” Whether non-targeted sales infringe remains undecided.

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