Trade Marks: Lifestyle Equities v Amazon
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Supreme Court (Lords Hodge, Briggs, Hamblen, Burrows and Kitchin) Lifestyle Equities CV and another v Amazon UK Services Ltd and others [2024] UKSC 8 (6 Mar 2024)
The Beverly Hills Polo Club is a popular range of clothing and luxury goods on both sides of the Atlantic. The Dutch companies Lifestyle Equities CV and Lifestyle Licensing BV ("Lifestyle"), hold the Beverly Hills Polo Club brands in the European Union and UK. An unconnected business that holds corresponding rights in the USA supplies Beverly Hills Polo Club branded goods to the American market. Amazon.com Inc. and its subsidiaries ("Amazon") are one of the American supplier's distributors in the USA. They market those goods on their US website, Lifestyle has complained that consumers in the UK have purchased goods intended for the American market from that website and imported them into the UK thereby infringing Lifestyle's trade marks.
The Internet has created a worldwide marketplace for goods and services in which trade marks offer only territorial protection. A registered mark is not infringed by its use outside the country for which it is registered. Thus, there can be no infringement of a UK trade mark where goods bearing the mark are advertised and sold overseas to a visitor from the UK for his personal use even if he brings the goods back to the UK. That is because the overseas retailer is not using the UK mark to sell his goods and the visitor has not bought the goods in the course of trade. The question that the Internet requires the courts to consider is whether a purchase by a consumer who selects goods from a foreign website on his computer at home is similar to a purchase by a British visitor from a shop overseas. If it is, there is a risk that trade mark protection may become entirely illusory in the context of Internet marketing and sales. If it is not there is a danger of creating an exorbitant and unprincipled extension into the international sphere of the territorial jurisdiction to protect trade marks.
The Response
The Court of Justice of the European Union ("CJEU") and national courts have sought to plot a course between those extremes by developing two separate solutions.
The first is to treat marketing that is targeted to consumers in a country where ta trade mark has been registered as "use" of that mark within the meaning of art 9 (2) and (3) of Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (codification)(Text with EEA relevance. ) (OJ L 154, 16.6.2017, p. 1–9) ("the EU Trade Mark Regulation") and s.10 (1) and (4) of the Trade Marks Act 1994.
The first is to treat marketing that is targeted to consumers in a country where ta trade mark has been registered as "use" of that mark within the meaning of art 9 (2) and (3) of Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (codification)(Text with EEA relevance. ) (OJ L 154, 16.6.2017, p. 1–9) ("the EU Trade Mark Regulation") and s.10 (1) and (4) of the Trade Marks Act 1994.
The second is to treat the entry of infringing goods into the trade mark owner's territory as use as happened in Case C-98/13 Martin Blomqvist v Rolex SA [2014] EUECJ C-98/13, [2014] Bus LR 356, [2014] WLR(D) 47, ECLI:EU: C:2014:55, [2014] ECDR 10, [2014] ETMR 25, EU: C:2014:55.
The Litigation
Lifestyle sued Amazon for trade mark infringement by allowing consumers in the UK to buy goods intended for the American market from their US website. The action was tried by Mr Justice Michael Green in December 2020 which was the last month of the period provided by art 126 of the withdrawal agreement in which EU law continued to apply to the UK. He could and perhaps should have referred the questions of whether there had been targeting of British consumers and whether the Bloomquist doctrine applied to the CJEU under art 267 of the Treaty on the Functioning of the European Union before the implementation period had expired but he chose not to do so, By para [208] or his judgment in Lifestyle Equities CV and another v Amazon UK Services Ltd and others [2021] FSR 19, [2021] EWHC 118 (Ch) the learned judge dismissed Lifestyle's claims.
Lifestyle appealed successfully to the Court of Appeal in Lifestyle Equities CV and another v Amazon UK Services Ltd and others [2023] 1 All ER 905, [2022] EWCA Civ 552, [2023] Bus LR 1010, [2022] WLR(D) 199, [2023] 1 All ER (Comm) 189, [2022] FSR 20.
Amazon appealed to the Supreme Court in Lifestyle Equities CV and another v Amazon UK Services Ltd and others [2024] UKSC 8 (6 Mar 2024) which upheld the Court of Appeal.
The Supreme Court's Judgment
The Supreme Court's judgment was delivered by Lord Briggs on YouTube on 6 March 2024. According to the transcript, it was written by Lord Briggs and Lord Kitchin with the agreement of Lord Hodge, Lord Hamblen and Lord Burrows. There is also a press summary and a case summary. Those who wish to follow the argument can see videos of the morning and afternoon sessions on 15 Nov 2023 and the morning session on 16 Nov 2023. I also posted a short introduction to the Supreme Court's judgment entitled Beverly Hills Polo Club Litigation to NIPC Branding on 13 March 2024.
The Structure of the Judgment
The judgment consists of 90 paragraphs divided into the following sections:
- Introduction (paras [1] - [7])
- The Applicable Law (paras [8] - [14])
- Targeting Consumers in the EU (paras [15] - [31])
- Non-Targeted Sales to Consumers in the EU (the Blomqvist Issue) (paras [32] - [45])
- The Correct Approach on Appeal (paras [46] - [51])
- The Decisions of the Courts Below (paras [52] - [57])
- Applying the Law to the Facts (paras [58] - [59])
- Targeting Consumers in the EU (pars [60] - [80])
- Errors on Targeting by the Courts Below (paras [81] - [87])
- Non-Targeted Sales to Consumers in the UK (the Blomqvist Issue (paras [88] - [89]) and
- Conclusion (para [90]).
The Applicable Law
Lord Briggs and Lord Kitchin referred to arts 9 (1), (2) (a), (3) (b) and (e) of the EU Trade Mark Regulation and to s,10 (1) and (4) (b) and (d) of the Trade Marks Act 1994. They also considered the elements of a claim under those provisions that had been discussed by Lord Justice Kitchin (as he then was) at para [67] of his judgment in Interflora Inc and another v Marks and Spencer Plc [[2015] ETMR 5, [2015] Bus LR 492, [2015] BUS LR 492, [2015] FSR 10, [2014] EWCA Civ 1403. [2014] WLR(D). The elements with which the Supreme Court was concerned were whether there had been "use" of a sign that was the same as or similar to any of Lifestyle's registered marks by Amazon within the UK and, if there had been, whether such use had been in the course of trade.
Targetting Consumers in the EU
Their lordships explained that the concept of "targeting" was first explored in the context of consumer contracts under art 15 (1) (c) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ L 12, 16.1.2001, p. 1–23):
..............................................
(c) in all other cases, the contract has been concluded with a person who pursues commercial or professional activities in the Member State of the consumer's domicile or, by any means, directs such activities to that Member State or to several States including that Member State, and the contract falls within the scope of such activities."
The following matters, the list of which is not exhaustive, are capable of constituting evidence from which it may be concluded that the trader's activity is directed to the member state of the consumer's domicile, namely the international nature of the activity, mention of itineraries from other member states for going to the place where the trader is established, use of a language or a currency other than the language or currency generally used in the member state in which the trader is established with the possibility of making and confirming the reservation in that other language, mention of teCase C-324/09lephone numbers with an international code, outlay of expenditure on an internet referencing service in order to facilitate access to the trader's site or that of its intermediary by consumers domiciled in other member states, use of a top-level domain name other than that of the member state in which the trader is established, and mention of an international clientele composed of customers domiciled in various member states. It is for the national courts to ascertain whether such evidence exists."
The CJEU made clear in the next paragraph that the mere accessibility of a website did not constitute targeting.
The concept of targeting was extended to trade marks by Case C-324/09 L'Oreal and Others v eBay International AG and others [2012] All ER (EC) 501, EU: C:2011:474, [2011] RPC 27, ECLI:EU: C:2011:474, [2011] EUECJ C-324/9, [2011] EUECJ C-324/09, [2011] ETMR 52, [2012] EMLR 6, [2012] Bus LR 1369, [2011] ECR I-6011 The CJEU held at para [61] that the First Trade Mark Directive and the Community Trade Mark Regulation applied as soon as it became clear that an offer for sale of a trade-marked product located in a third country was targeted at consumers in the territory where the trade mark was registered. It fell to national courts to assess on a case-by-case basis whether there had been any relevant factors on the basis of which it might be concluded that an offer for sale, displayed on an online marketplace accessible from the territory covered by the trade mark, was targeted at consumers in a particular territory. Particularly important to such an assessment would be where an offer for sale was accompanied by details of the geographic areas to which the seller was prepared to dispatch his goods,
"[167] First, in determining whether an advertisement of goods bearing a trade mark on the website of a foreign trader constitutes use of the trade mark in the UK, it is necessary to assess whether the advertisement is targeted at consumers in the UK and in that way constitutes use of the mark in relation to goods in the course of trade in the UK.
[168] Secondly, the mere fact that a website is accessible from the UK is not a sufficient basis for concluding that an advertisement displayed there is targeted at consumers in the UK.
[169] Thirdly, the issue of targeting is to be considered objectively from the perspective of average consumers in the UK. The question is whether those average consumers would consider that the advertisement is targeted at them. Conversely, however, evidence that a trader does in fact intend to target consumers in the UK may be relevant in assessing whether its advertisement has that effect.
[170] Fourthly, the court must carry out an evaluation of all the relevant circumstances. These may include any clear expressions of an intention to solicit custom in the UK by, for example, in the case of a website promoting trade-marked products, including the UK in a list or map of the geographic areas to which the trader is willing to dispatch its products. But a finding that an advertisement is directed at consumers in the UK does not depend upon there being any such clear evidence. The court may decide that an advertisement is directed at the UK in light of some of the non-exhaustive list of matters referred to by the Court of Justice in Pammer at paragraph [93]. Obviously the appearance and content of the website will be of particular significance, including whether it is possible to buy goods or services from it. However, the relevant circumstances may extend beyond the website itself and include, for example, the nature and size of the trader's business, the characteristics of the goods or services in issue and the number of visits made to the website by consumers in the UK."
The Blomqvist Principle
In Blomqvist, a Danish national bought what was described as a Rolex watch from a Chinese website. The seller posted the watch to Denmark. Danish customs impounded the watch for inspection when it entered Denmark and found it to be a fake, They alerted Rolex and the Danish purchaser. Rolex sought the watch's destruction but the purchaser objected pointing out that he had bought the watch for his personal use. Rolex brought proceedings in the Danish courts to compel the watch's destruction. It relied on Council Regulation (EC) No 1383/2003 of 22 July 2003 concerning customs action against goods suspected of infringing certain intellectual property rights and the measures to be taken against goods found to have infringed such rights OJ L 196, 2.8.2003, p. 7–14. The Danish Supreme Court referred the question of whether the seller had infringed the Danish and EU trade mark even though there had been no targeting to the CJEU under art 267 of the Treaty on the Functioning of the European Union. The Court replied as follows:
"... the holder of an intellectual property right over goods sold to a person residing in the territory of a member state through an online sales website in a non-member country enjoys the protection afforded to that holder by [the Customs Regulation] at the time when those goods enter the territory of that member state merely by virtue of the acquisition of those goods. It is not necessary, in addition, for the goods at issue to have been the subject, prior to the sale, of an offer for sale or advertising targeting consumers of that state."
As Lord Briggs and Lord Kitchin explained at para [45] of their judgment:
The Correct Approach to Appeal
Their lordships stressed that an appeal court should hesitate to disturb a trial judge's findings for the reasons given by Lord Justice Lewison in Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5; [2014] FSR 29; [2014] ETMR 26:
"Appellate courts have been repeatedly warned, by recent cases at the highest level, not to interfere with findings of fact by trial judges, unless compelled to do so. This applies not only to findings of primary fact, but also to the evaluation of those facts and to inferences to be drawn from them. The best known of these cases are: Biogen Inc v Medeva plc [1977] R.P.C. 1; Piglowska v Piglowski [1999] 1 WLR 1360; Datec Electronics Holdings Ltd v United Parcels Service Ltd [2007] UKHL 23; [2007] 1 WLR 1325; In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33; [2013] 1 WLR 1911 and, most recently and comprehensively, McGraddie v McGraddie [2013] UKSC 58; [2013] 1 WLR 2477. These are all decisions either of the House of Lords or of the Supreme Court. The reasons for this approach are many. They include:
i) The expertise of a trial judge is in determining what facts are relevant to the legal issues to be decided, and what those facts are if they are disputed.
ii) The trial is not a dress rehearsal. It is the first and last night of the show.
iii) Duplication of the trial judge's role on appeal is a disproportionate use of the limited resources of an appellate court, and will seldom lead to a different outcome in an individual case.
iv) In making his decisions the trial judge will have regard to the whole of the sea of evidence presented to him, whereas an appellate court will only be island hopping.
v) The atmosphere of the courtroom cannot, in any event, be recreated by reference to documents (including transcripts of evidence).
vi) Thus even if it were possible to duplicate the role of the trial judge, it cannot in practice be done."
"Appellate courts have been repeatedly warned, by recent cases at the highest level, not to interfere with findings of fact by trial judges, unless compelled to do so. This applies not only to findings of primary fact, but also to the evaluation of those facts and to inferences to be drawn from them. The best known of these cases are: Biogen Inc v Medeva plc [1977] R.P.C. 1; Piglowska v Piglowski [1999] 1 WLR 1360; Datec Electronics Holdings Ltd v United Parcels Service Ltd [2007] UKHL 23; [2007] 1 WLR 1325; In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33; [2013] 1 WLR 1911 and, most recently and comprehensively, McGraddie v McGraddie [2013] UKSC 58; [2013] 1 WLR 2477. These are all decisions either of the House of Lords or of the Supreme Court. The reasons for this approach are many. They include:
i) The expertise of a trial judge is in determining what facts are relevant to the legal issues to be decided, and what those facts are if they are disputed.
ii) The trial is not a dress rehearsal. It is the first and last night of the show.
iii) Duplication of the trial judge's role on appeal is a disproportionate use of the limited resources of an appellate court, and will seldom lead to a different outcome in an individual case.
iv) In making his decisions the trial judge will have regard to the whole of the sea of evidence presented to him, whereas an appellate court will only be island hopping.
v) The atmosphere of the courtroom cannot, in any event, be recreated by reference to documents (including transcripts of evidence).
vi) Thus even if it were possible to duplicate the role of the trial judge, it cannot in practice be done."
The Decisions of the Courts below
The Supreme Court considered Mr Justice Michael Green's finding that there had been no targeting in para [52]. He had relied on the following facts:
He also distinguished Blomqvist on the basis that the sale had been made in Denmark or the watch was intended for onward sale.
The Court of Appeal found the trial judge's analysis had been vitiated by errors, Upon a re-analysis it was plain that Amazon had targeted its goods at consumers in the UK. It also held that the sales of US-branded goods from the US website to consumers in the UK infringed Lifestyle's UK and EU marks under the Blomqvist doctrine.
Applying the Law to the Facts
Lords Briggs and Kitchin noted in para [58] of their judgment that there had literally been no actual"!use" within the meaning of art 9 of the EU Trade Mark Regulation and s.10 of the Trade Marks Act 1994. Amazon's sales to European consumers had been completed in the USA even though the consumers had never left their homes. Lifestyle had conceded that the importation of the purchased items by the consumers was for personal use and not in the course of trade. They made no case against Amazon for such importation even though Amazon had arranged and charged for the goods' transportation. If Lifestyle was to succeed it would have to rely on targeting or Blomqvist.
Their lordships observed that a visitor to Amazon's US website using a UK Internet protocol address would see the words "Deliver to United Kingdom" immediately below the Amazon long on the landing page on the site's landing page. Hovering over that text reveals a pop-up box stating "We ship internationally. We're showing you items that ship to United Kingdom. To see items that ship to a different country, change your delivery address. Additional language and currency settings are available."There are "Change" and "Don't Change" options. Slightly below that box is a message: "You are on Amazon.com. You can also shop on Amazon UK for millions of products with fast local delivery. [Then, in blue.] Click here to go to Amazon.co.uk." A slide that appears behind that message offers customers the option of shopping in sterling, euros or other currencies though the default setting shows US dollars.
A "Deliver to United Kingdom" message will appear on every subsequent page together with information as to whether a particular item is available for shipping to the UK. Amazon's software automatically fills in the customer's shipping and billing address and details of the transaction including the price in euros or sterling and the latest dollar exchange rate at the order review and order placing stages.
After balancing the relevant facts about Amazon's marketing and offer for sale of the US branded goods on its US website, the Supreme Court concluded at para [70] that the website showed with reasonable clarity that it was targeting the UK as a territory. They reached that conclusion because the factors favouring targeting greatly outweighed the factors that pointed in the opposite direction.
After balancing the relevant facts about Amazon's marketing and offer for sale of the US branded goods on its US website, the Supreme Court concluded at para [70] that the website showed with reasonable clarity that it was targeting the UK as a territory. They reached that conclusion because the factors favouring targeting greatly outweighed the factors that pointed in the opposite direction.
Errors of the Courts Below
At para [69] of their judgment their lordships wrote:
".....the questions we need to answer are: (i) was the Court of Appeal entitled to reject the judge's conclusion and consider the matter afresh and if so, (ii) is this court entitled to do so again, because of errors by the Court of Appeal, and if so, (iii) what is our own conclusion on the underlying question? As will appear, we have concluded that the answer to both questions (i) and (ii) is "yes", but it is much easier to explain why against the backdrop of our own conclusions at stage (iii)."
".....the questions we need to answer are: (i) was the Court of Appeal entitled to reject the judge's conclusion and consider the matter afresh and if so, (ii) is this court entitled to do so again, because of errors by the Court of Appeal, and if so, (iii) what is our own conclusion on the underlying question? As will appear, we have concluded that the answer to both questions (i) and (ii) is "yes", but it is much easier to explain why against the backdrop of our own conclusions at stage (iii)."
Addressing the question "was the Court of Appeal entitled to reject the judge's conclusion and consider the matter afresh" Lord Briggs and Lord Kitchin said at para [81]:
"At paras 68 to 73 of the judgment of Arnold LJ the Court of Appeal delivered an excoriating critique of the analysis of the judge. The following six supposed errors were identified:
(i) The judge focussed too much on the USA website as a whole, rather than on an analysis of each of the acts of targeting complained of.
(ii) The judge thought that because the USA website was primarily directed at US consumers, it followed that the relevant web pages were not targeted at UK consumers.
(iii) The judge's use (at para 124) of "taking deliberate aim" as a way of describing targeting displayed a mistaken focus upon Amazon's subjective intent.
(iv) The judge wrongly accepted, without evidence of a decision by Amazon to that effect, that the UK-oriented aspects of the web pages were merely designed to make the use of the USA website easy and painless for a (non-targeted) UK consumer.
(v) The judge failed to discount the relevance of lower shipping costs on the UK website because there was no evidence that this was not balanced out by price differentials, and because consumers would not in any event be likely to be aware of them.
(vi) The judge wrongly treated as relevant the evidence about the subjective motives of the Lifestyle companies in bringing these claims."
"At paras 68 to 73 of the judgment of Arnold LJ the Court of Appeal delivered an excoriating critique of the analysis of the judge. The following six supposed errors were identified:
(i) The judge focussed too much on the USA website as a whole, rather than on an analysis of each of the acts of targeting complained of.
(ii) The judge thought that because the USA website was primarily directed at US consumers, it followed that the relevant web pages were not targeted at UK consumers.
(iii) The judge's use (at para 124) of "taking deliberate aim" as a way of describing targeting displayed a mistaken focus upon Amazon's subjective intent.
(iv) The judge wrongly accepted, without evidence of a decision by Amazon to that effect, that the UK-oriented aspects of the web pages were merely designed to make the use of the USA website easy and painless for a (non-targeted) UK consumer.
(v) The judge failed to discount the relevance of lower shipping costs on the UK website because there was no evidence that this was not balanced out by price differentials, and because consumers would not in any event be likely to be aware of them.
(vi) The judge wrongly treated as relevant the evidence about the subjective motives of the Lifestyle companies in bringing these claims."
"(i) We do not consider that the judge was wrong to review the USA website as a whole. It is a necessary part of the appraisal of the targeting issue that the combined effects of a marketing website upon the perceptions of the average consumer are considered in the aggregate. But the judge did fail to focus in sufficient detail, stage by stage, upon the specific elements of the successive pages in the USA website as they would reveal themselves to the average consumer on their journey from landing to a decision to buy, before making his assessment of its overall effect.
(ii) It was an error by the judge to treat the fact that a website is primarily targeted at one territory as a weighty factor towards a conclusion that it is not targeted at one or more, or indeed many, other territories. This is especially the case where, as here, the USA website was designed so as to mould itself automatically to an incoming consumer's requirements by reference to the location of the consumer's IP address. The evidence does not reveal for how many different territories that moulding was built in, but it is sufficient for the present purpose that it was for the UK.
(iii) We do not regard the 'taking deliberate aim' phrase as revealing an inappropriate focus on Amazon's subjective intent. It is a reasonable way of describing the effect of a targeted website on the perception of the average consumer. The consumer is treated as asking: 'is this advertisement deliberately aimed at British people, among others?' But in our view the judge was plainly wrong to answer that hypothetical question in the negative. For example, the pop-up box was plainly telling the consumer that they would find in the following pages those products available for shipment to the UK, as indeed they did.
(iv) We think that this 'making it painless and easy' (judge, para 171) point raised a false hypothesis. It is a natural part of targeting consumers in a particular territory that the trader takes trouble to configure the website in as user-friendly way as possible for consumers in that territory. This is what the USA website did, in particular in highlighting all the goods available for shipment to the UK, and in giving the consumer an option to convert all US dollar prices to sterling, at a current exchange rate.
(v) We have already explained why, albeit for slightly different reasons than those of the Court of Appeal, we think that the judge's heavy emphasis on typically higher delivery charges and longer delivery times, by comparison with the UK website, was a mistake. This is not just a matter of weight, where an appellate court will not usually intervene. The judge's analysis of the point was seriously flawed.
(vi) It will already be apparent that we do not think that the subjective motivation of the Lifestyle companies for bringing these claims is of any relevance. The judge was wrong to bring it into account at all, and all the more wrong to give it the emphasis that he did."
Turning to the question of whether the Supreme Court was entitled to reject the Court of Appeal's conclusion and consider the matter afresh, their lordships said at [84[:
"In sharp contrast it will be apparent that in our judgment, for whatever precise reasons, the Court of Appeal got the answer right on targeting. The outcome of this appeal will therefore be the same whether we conclude that the Court of Appeal were entitled to reach the conclusion which they did, or say that they reached the right conclusion, but using reasoning which is open to challenge."
"In sharp contrast it will be apparent that in our judgment, for whatever precise reasons, the Court of Appeal got the answer right on targeting. The outcome of this appeal will therefore be the same whether we conclude that the Court of Appeal were entitled to reach the conclusion which they did, or say that they reached the right conclusion, but using reasoning which is open to challenge."
Amazon had made the following criticisms of the Court of Appeal's judgment:
"(i) It focussed too narrowly on particular elements of only some of the pages on the USA website, to the exclusion of a review either of the effect of the website as a whole, or of a balanced weighing of all the factors identified by the judge.
(ii) It dismissed factors external to the USA website, such as the low volumes of sales, the higher delivery times and delivery (including import) charges, as if they were of no weight at all.
(iii) It worked backwards through the USA website, starting at the "review your order" page, and concentrated upon UK related details which had been supplied by the consumer, rather than material inputted by Amazon. It should have conducted a journey through the USA website from start to finish, as we have done in our own evaluation of the targeting issue.
(iv) Overall it applied such a low threshold to the requirement for targeting that it would be satisfied whenever a UK consumer purchased goods online from a non-UK website for delivery in the UK."
"(i) It focussed too narrowly on particular elements of only some of the pages on the USA website, to the exclusion of a review either of the effect of the website as a whole, or of a balanced weighing of all the factors identified by the judge.
(ii) It dismissed factors external to the USA website, such as the low volumes of sales, the higher delivery times and delivery (including import) charges, as if they were of no weight at all.
(iii) It worked backwards through the USA website, starting at the "review your order" page, and concentrated upon UK related details which had been supplied by the consumer, rather than material inputted by Amazon. It should have conducted a journey through the USA website from start to finish, as we have done in our own evaluation of the targeting issue.
(iv) Overall it applied such a low threshold to the requirement for targeting that it would be satisfied whenever a UK consumer purchased goods online from a non-UK website for delivery in the UK."
The Supreme Court responded as follows at para [86]:
"(i) It is certainly true that the Court of Appeal did appear to conduct a sequential but essentially self-contained review of a small number of specific pages in the USA website, with a view to deciding whether each, viewed separately but in context of the website as a whole, amounted to an act of targeting. It did so because, we think, they regarded a targeting conclusion as so obvious in relation to the 'Review your Order' page, that the outcome could be concluded against Amazon by reference to that page alone. We do think that in many cases this will be an erroneous approach, not least because it may fail to reveal targeting as the effect of an online website as a whole, merely because no single page is so to be viewed on its own. Putting it shortly, it is an approach which may miss the wood for the trees.
(ii) We would not criticise the Court of Appeal for largely dismissing the evidence about delivery times and charges as pointing away from targeting. We have reached a similar conclusion, for slightly different reasons, albeit with less firmness than did the Court of Appeal.
(iii) The Court of Appeal did work backwards rather than forwards through the USA website, and their list of factors pointing towards targeting in the 'Review your Order' page did not distinguish between those supplied by the consumer and those inputted by Amazon. The result was that it did not really address (as we have done) Amazon's point that targeting should not be established merely because an online seller repeats order details supplied by the consumer. We would hesitate before concluding that a backwards journey through an online sales website is never appropriate, but we have certainly found that doing the review forwards rather than backwards better reveals what the average consumer is likely to see and conclude.
(iv) 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. Our conclusion that there was targeting is based not simply upon this page but upon the combined effect of all those aspects of the USA website that show how it is specifically designed to offer goods to a UK consumer, once its antennae pick up the fact that an incoming consumer enquiry is coming from a consumer with an IP address in the UK. To that extent we do consider that the approach of the Court of Appeal was too simplistic, even though it did not, in the event, lead it to the wrong conclusion."
Finally, the Supreme Court answered the third question: what is the Supreme Court's own conclusion on the underlying question? It said at [87] that the above reasons were why the Court had decided that it should conduct the appraisal of the targeting afresh, rather than merely decide that the Court of Appeal was entitled to reach the conclusion which it did, and leave the matter there.
Blomqvist
Having found that there had been targeting their lordships considered that it was unnecessary to consider Lifestyle's Blonmqvist argument and they declined to do so. They expressed some relief at avoiding the need to consider the case. There had been no opinion from the Advocate-General and some of the facts upon which the opinion was based were not clear.
Comment
This judgment is unusual in many respects. Instead of starting with grounds of appeal and considering whether they could be justified, the Supreme Court set out its own analysis of the law and proceeded to make its own evaluation of a typical UK user's experience of Anazon 's US website. It then criticized the judgments of Mr Justice Michael Green and the Court of Appeal before concluding that the Court of Appeal had reached the right result albeit for the wrong reasons.
The reason why a reference under art 267 of the Treaty on the Functioning of the European Union might have been useful is that there does not appear to be much authority on targeting or Blomqvist. The only European authorities that their lordships cited were art 9 of the EU Trade Mark Regulation. Pammer which was on jurisdiction, L'Oreal and Blomqvist.
Had Mr Justice Michael Green made such a reference he would have been spared the criticism of the Court of Appeal. I have to confess a certain amount of sympathy for his lordship for at the end of the day he erred only on Lifestyle's management's motives and the possibility that there can be targeting to more than one country at the same time. He was not too far off the Supreme Court's view of Blomqvist.
No guidelines were offered by the Supreme Court on how to identify targeting or the circumstances in Blomqvist. would apply. As all sorts of businesses from individual artists and craftsmen and women up to international brands market their wares on Amazon this is unlikely to be the last case on targeting or the Blomqvist principle.
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