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A not so “Lush” trademark infringement battle

Written by Hannah Chapman, a student at Southampton Solent University on 23 July 2018

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After a successful win against Amazon in 2014, Lush (a trademark of Cosmetic Warriors Limited) who are known for their beauty cosmetics have filed a claim for trademark infringement against competitor Luscious Cosmetics. Cosmetic Warriors Limited first opened in Poole in 1995, using their brand trademark as black writing with a white background which was trademarked in 2005 in the US under class code 100 and 101 (class 44 in the UK- Medical, veterinary, beauty care and gardening services).

Luscious Cosmetics on the other hand, was founded in 2007 and have only recently in 2017 applied for a trademark through the US Patent and Trademark Office which evidently Cosmetic Warriors Limited have frowned upon and wish to prevent Luscious Cosmetics to be trademarked as they believe it resembles a similarity to their own brand. Luscious Cosmetics however use white writing and a black background. Luscious Cosmetics have also, allegedly used the words ‘luscious’ and ‘luscious cosmetics’ to boost/ promote their brand within the current market. Cosmetic Warriors Limited have further argued that continuing to allow Luscious Cosmetics to associate with the word lush will infringe upon them and could diminish their goodwill image of their lush products and their brand.

This infringement could potentially damage the Lush brand. Lord Justice has previously said in Reddaway v Banham that ‘no man may pass his goods off as those of another’. Thus, if Cosmetic Warriors Limited can prove that their customers could confuse their products with Luscious Cosmetics then they are likely to have another successful win in court.

During Luscious Cosmetics application Cosmetic Warriors Limited have protested and objected to the potential trademark. The final and most up to date news on this current case is that the US Patent and Trademark Office have yet to grant Luscious Cosmetics their trademark.

Cosmetic Warriors Limited are seeking a remedy in the form of a court order (injunction). If the injunction is granted it will allow Cosmetic Warriors Limited to prevent Luscious Cosmetics from using the word Lush as it could ruin the reputation of the brand ‘Lush’. Cosmetic Warriors Limited already have an established reputation within the market(goodwill), hence any attempt to harm it could result in damages in the form of passing off.

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