Case No. EWHC-2564-(IPEC)

(8) Effect of section 25 of the Act/Article 27 of EUTMR. The allegations of trade mark infringement 32.The Claimant concentrated at trial upon the allegations of trade mark infringement and especially the allegation of infringement under s 10(1) of the Trade Marks Act 1994 (“the Act”) and Article 9(2)(a) of Regulation No 207/2009 (“the EUTMR”). Mr Silverleaf QC submitted that this was a straightforward case of use by the Defendants of the Marks for the purpose of promoting and selling their own products. The claim of and defence to infringement was (in summary form) pleaded as follows: a)The Defendants used sponsored Google ads. See Annex A. There was no claim that the advertisements were confusing or deceptive. Instead, the complaint was about what happened once the user landed on iKoustic’s website. The Defendants admitted having made some use of the Marks as keywords but said that the advertisements were generated by Google’s “dynamic ads” service, in which the keyword was chosen by Google, not by the Defendants. This was not their use of the Marks. b)The Claimants complained of instances when the landing page was either an “Existing Customers Login” page, with contact details, or a page for the particular product stating that it was unavailable to buy online, with a Contact link. Examples were pleaded at various dates in 2019. See Annex B. These were admitted. The Defendants said that when a product was out of stock the relevant webpage would be removed, and the search engine result would default to the Existing Customers Login page, which shows neither side’s products. A product would be shown as unavailable to buy online in particular where advice was required before purchase. c)The Claimants alleged that a list of the Defendants’ own products was displayed on the site to potential customers of the Claimants’ goods. The Defendants said that such a list was only displayed when a customer clicked on/hovered over a “Products” tab on the main menu of the website. Alternatively, their products were at times displayed beneath the Claimants’ product under the heading “Related Products,” which was said to be a legitimate advertisement for a competing product. d)The Claimants complained that in late September 2019 the website was changed to show the FF10 mat in stock, though no stock was then held by iKoustic. It is now accepted that throughout 2019 iKoustic had a single roll of FF10 in stock and the change to the site was not pursued as an infringement. e)The Claimants complained about a blogpost on the iKoustic website on 30 September 2019 which said, “The wall below shows how the cutting-edge technology of a Genie Clip works … iKoustic is one of only two suppliers of this technique in the UK.” The Claimants pleaded that at that date, iKoustic was not a supplier of GenieClips. This point was not pursued at trial. The Claimants also complained that on the same date a webpage stated that iKoustic no longer stocked the GENIECLIP, but included a link to the MuteClip, described as iKoustic’s new alternative isolation clip. See Annex C. The Defendants said that when that post was on the site, they still had GenieClips in stock and that it would be plain to a customer that an alternative product was on offer. f)The Claimants concentrated at trial on the claim that iKoustic was luring internet users into purchasing its products, by advertising the Claimants’ products when it was unable to provide them. Its use of the Marks was for the purpose of selling iKoustic’s goods. This was denied. The Defendants said that the Marks were used only to advertise and sell the Claimants’ products and when they were not in stock the products were not displayed on the iKoustic website. A purchaser would have to consciously select a link containing the MuteMat/MuteClip name to purchase those goods, so that no-one would be confused into doing so. g)The Claimants alleged that similar “bait and switch” tactics were used directly to consumers, and gave examples. This was alleged to damage the origin function by encouraging purchasers to use the Marks to identify competing products, genericising the Mark, and to damage the advertising and investment functions of the Marks. The Defendants denied that they had used the Marks inappropriately and denied any impact on any of the Marks' functions. All of the Defendants’ uses fell within the exhaustion defence of section 12(1) of the Act/Article 15(1) of the EUTMR. In the Reply, the Claimants denied that those defences applied, as they had legitimate grounds to oppose the further commercialisation of their goods. h)The Claimants alleged that the Defendants’ use of the Marks infringed under s 10(3) /Article 9 (2)( c) as it took unfair advantage of them, due to the “bait and switch” selling, whether or not the alternative trade origin was discernible. This was denied and the Defendants claimed due cause to use the Claimants’ Marks to sell the Claimants’ products. 33.Mr Aikens complained on behalf of the Defendants, with some justification, that the Claimants had changed their case as they went along. He said that the Claimants had failed to identify examples of alleged instances of infringement in addition to the limited number of instances pleaded, so that the Defendants did not know the case they had to meet. Mr Windle’s witness statement listed eight inquiries to iKoustic via its website’s Jivochat facility, but did not explain whether these were all said to show infringement, how or why. That was compounded by the identification by the Claimants, in the Schedule, of numerous documents said to be relevant to alleged product substitution or infringement, which did not show how or why any one example was said to show infringing use. This all meant, said Mr Aikens, that Mr Parsons would be hard pressed to deal with any of these numerous new examples that might be put to him in cross-examination. I think that was indeed the case, as I have said, and I therefore feel it would be wrong to place much weight upon many of Mr Parsons’ answers to questions in cross-examination about particular transactions or chains of correspondence. It is safer to rely upon what can be seen in the documents before me. And, indeed, most of the items in the Schedule were not put to Mr Parsons.34.Similarly, the Claimants referred during the trial to a Google Shopping campaign launched by Mr Parsons, who accepted in cross examination that this generated some ads. This use was unpleaded, and I was not told whether or how it differed from the general run of dynamic ads. In post-trial submissions, the Claimants also referred me to iKoustic’s YouTube advertisement(s). There was no pleaded case as to how these may have infringed. Though mentioned by Mr Windle and Mr Parsons in their witness statements, these adverts were not dealt with at trial. I do not consider it appropriate to deal further with either point.35.Mr Aikens also complained that the Claimants appeared to wish to bolster their case under s 10(3) by alleging that the Defendants had misled customers by use of misrepresentative or misleading comparative test results. This was dealt with at length in the Claimants’ skeleton argument. I agree that the Claimants were in that respect seeking to run a broad and wholly unpleaded case, which would have called for evidence which was not before me, possibly including expert evidence. In the event, after I expressed my concerns about it, this line was not pursued further with Mr Parsons in evidence, or by Mr Silverleaf QC in closing. I do not propose to deal further with it in this judgment.The law 36.There was no dispute between the parties as to the essential elements of trade mark infringement under s 10(1)/Article 9(2)(a):a.There must be use of a sign by a third party within the relevant territory. b.The use must be in the course of trade. c.The use must be without the consent of the proprietor of the trade mark. d.The use must be of a sign which is identical to the trade mark. e.The use must be (a) in relation to goods or services (b) which are identical to those for which the trade mark is registered. f.The use must affect, or be liable to affect, one of the functions of the trade mark. 37.The Claimants said that all of the conditions were met, and relied upon damage to the origin, advertising and investment functions. The Defendants did not accept that they had made use of the Marks by use of the Google dynamic ads service, but otherwise accepted that the first 5 conditions were met here. They denied that their uses of the Marks were liable to affect any of the functions of the trade mark.38.The functions of trade marks were restated by the CJEU in Case C-129/17, Mitsubishi v Duma, EU:C:2018:594, [2018] ETMR 37:“35 … it must be borne in mind that the essential function of a trade mark is to guarantee the identity of the origin of the marked goods or service to the consumer or end user by enabling him to distinguish the goods or service from others which have another origin (judgment of 23 March 2010, Google France and Google, C-236/08 to C-238/08, EU:C:2010:159, paragraph 82 and the caselaw cited). It serves in particular to guarantee that all the goods or services bearing it have been manufactured or supplied under the control of a single undertaking which is responsible for their quality, which it does in order to fulfil its essential role in the system of undistorted competition (see, to that effect, the judgments of 12 November 2002, Arsenal Football Club, C-206/01, EU:C:2002:651, paragraph 48, and of 12 July 2011, L’Oréal and Others, C-324/09, EU:C:2011:474, paragraph 80). 36The function of investment of the mark includes the possibility for the proprietor of a mark to employ it in order to acquire or preserve a reputation capable of attracting customers and retaining their loyalty, by means of various commercial techniques. Thus, when the use by a third party, such as a competitor of the trade mark proprietor, of a sign identical to the trade mark in relation to goods or services identical with those for which the mark is registered substantially interferes with the proprietor’s use of its trade mark to acquire or preserve a reputation capable of attracting consumers and retaining their loyalty, the third party’s use adversely affects that function of the trade mark. The proprietor is, as a consequence, entitled to prevent such use under Article 5(1)(a) of Directive 2008/95 or, in the case of an EU trade mark, under Article 9(1)(a) of Regulation No 207/2009 (see, to that effect, the judgment of 22 September 2011, Interflora and Interflora British Unit, C-323/09, EU:C:2011:604, paragraphs 60 to 62). 37As to the function of the advertising of the mark, it is that of using a mark for advertising purposes designed to inform and persuade consumers. Accordingly, the proprietor of a trade mark is, in particular, entitled to prohibit a third party from using, without the proprietor’s consent, a sign identical with its trade mark in relation to goods or services which are identical with those for which that trade mark is registered, where that use adversely affects the proprietor’s use of its mark as a factor in sales promotion or as an instrument of commercial strategy (see, to that effect, the judgment of 23 March 2010, Google France and Google, C-236/08 to C-238/08, EU:C:2010:159, paragraphs 91 and 92).” 39.In Case C-323/09 Interflora the CJEU had also said of the investment functions: “63 In a situation in which the trade mark already enjoys such a reputation, the investment function is adversely affected where use by a third party of a sign identical with that mark in relation to identical goods or services affects that reputation and thereby jeopardises its maintenance. As the Court has already held, the proprietor of a trade mark must be able, by virtue of the exclusive right conferred upon it by the mark, to prevent such use (L’Oréal SA v eBay International AG (C-324/09) [2011] E.T.M.R. 52 at [83]). 64 However, it cannot be accepted that the proprietor of a trade mark may—in conditions of fair competition that respect the trade mark’s function as an indication of origin—prevent a competitor from using a sign identical with that trade mark in relation to goods or services identical with those for which the mark is registered, if the only consequence of that use is to oblige the proprietor of that trade mark to adapt its efforts to acquire or preserve a reputation capable of attracting consumers and retaining their loyalty. Likewise, the fact that that use may prompt some consumers to switch from goods or services bearing that trade mark cannot be successfully relied on by the proprietor of the mark.” 40.Subsequently, in Interflora in the Court of Appeal ([2014] EWCA Civ 1403; [2015] FSR 10) when considering the CJEU’s guidance, Kitchin LJ said: “92 …, although the protection afforded by art.5(1)(a) is “absolute”, the exercise of the right conferred is reserved for cases in which the use of the sign by a third party adversely affects or is liable adversely to affect one of the functions of the trade mark, and that is so whether that function is the essential function indicating the origin of the goods or services covered by the mark, or one of the other functions, such as that of guaranteeing the quality of the goods or services concerned or that of communication, investment or advertising. … 97Guidance on the effect on advertising function is set forth in the decision from [54]–[59]. The Court restated that the use of a sign identical to another person’s trade mark in the Google referencing service did not adversely affect the advertising function of that mark, even though it might have repercussions on the use of the mark in advertising. In this connection the Court recognised that the use of such a sign as a keyword meant that the proprietor of the trade mark might have to pay a higher price per click than the competitor if it wished to ensure that its advertisement appeared before that of the competitor. But this did not necessarily mean that the trade mark’s advertising function was adversely affected “57. However, the mere fact that the use, by a third party, of a sign identical with a trade mark in relation to goods or services identical with those for which that mark is registered obliges the proprietor of that mark to intensify its advertising in order to maintain or enhance its profile with consumers is not a sufficient basis, in every case, for concluding that the trade mark’s advertising function is adversely affected. In that regard, although the trade mark is an essential element in the system of undistorted competition which European law seeks to establish (see, in particular, Case C-59/08 Copad SA v Christian Dior Couture SA [2009] E.C.R. I-3421; [2009] F.S.R. 22 at [22]), its purpose is not, however, to protect its proprietor against practices inherent in competition. 58.Internet advertising on the basis of keywords corresponding to trade marks constitutes such a practice in that its aim, as a general rule, is merely to offer internet users alternatives to the goods or services of the proprietors of those trade marks (see, to that effect, Google France [2010] R.P.C. 19 at [69]). 59.The selection of a sign identical with another person’s trade mark, in a referencing service with the characteristics of “AdWords”, does not, moreover, have the effect of denying the proprietor of that trade mark the opportunity of using its mark effectively to inform and win over consumers (see, in that regard, Google France [2010] R.P.C. 19 at [96] and [97]).” 98Again this is a significant passage for it shows an appreciation by the Court that internet advertising using keywords which are identical to trade marks is not an inherently objectionable practice. On the contrary, its aim is, in general, to offer to internet users alternatives to the goods or services of trade mark proprietors and it is not the purpose of trade marks to protect their proprietors from fair competition. … 100. …the investment function does not provide a means to protect trade mark proprietors against the effects of fair competition, even if such competition means that these proprietors have to adapt their efforts to acquire or preserve a reputation capable of attracting and retaining customers … … 135 …the Court has now held in a long line of decisions that the right under art.5(1)(a) (and art.9(1)(a)), though “absolute”, is conferred to enable the trade mark proprietor to protect his interests as proprietor, that is to ensure the trade mark can fulfil its functions. The exercise of the right must therefore be reserved to cases in which a third party’s use of the sign adversely affects, or is liable adversely to affect, one of those functions.” 41.Whilst a case of infringement under section 10(3) and Article 9(2)(c) was pleaded, in their skeleton argument the Claimants said that given the admission of double identity, this basis of infringement was unlikely to add anything. The only points raised were those which I have discussed and rejected at paragraph 35 above, and an allegation of taking unfair advantage as part of the Claimants’ position on section 12(2)/Article 15(2), discussed below.Bait and switch selling 42.Although the Claimants described this as a case of “classic” bait and switch selling, they did not direct me to any authority in which such selling was held to amount to trade mark infringement. They said that the proper analysis is that bait and switch selling is an infringement because it amounts to use of the Claimants' mark to sell the Defendants' goods and, therefore, is use in relation to the Defendants’ goods.43.The Claimants' skeleton suggested that being known as a distributor of the Claimants' successful products gave a commercial benefit to the Defendants once they had launched their own competing products. I think that is probably accepted by the Defendants, but in any event, it seems to me to be inevitable, given the parties’ prior commercial relationship. The Marks were established brands and iKoustic was a longstanding and very successful distributor for those goods. A number of documents show that customers who had previously bought the Claimants’ products from iKoustic unsurprisingly continued to contact it seeking further supplies, at which point, in some cases at least, they were offered the Defendants’ goods. 44.The Claimants accepted that as a matter of law there is nothing wrong in principle with the Defendants offering potential customers an alternative product to that which they were originally seeking. As I have said, no obligation of exclusivity had been imposed upon iKoustic, nor were the Defendants precluded from contacting customers who had previously bought the Claimants’ products from them to offer them iKoustic alternative products. Nevertheless, the Claimants submitted that such conduct "becomes impermissible …where it uses the Claimants' marks for the real purpose of promoting and selling the Defendants' alternative goods." They claimed that the Defendants could have sold the goods back to the Claimants, but chose to keep them “as a justification for continuing to list them on iKoustic’s website” and to bid on them as online search terms. This enabled iKoustic to attract custom which could be diverted to the MuteClip/MuteMat products. The Claimants alleged that the use of the Marks continued for months after iKoustic ceased to have “sufficient stock to meet any significant orders” at which point it was inevitable that customers seeking the Claimants’ goods would be served with the Mute products instead. Therefore, they said, any such use of the Marks was an infringement; it was bait and switch selling, and did not fall within the exhaustion defences. 45.A definition of “bait and switch” conduct was given by Arnold J (as he then was) in the context of a wider discussion of initial interest confusion, that is to say where customers do not remain confused at the time of any sale, in Och-Ziff Management Europe Ltd v Och Capital LLP [2010] EWHC 2599 (Ch)[2011] F.S.R. 11. The facts of that case were, of course, very different from the facts here. Indeed, Mr Silverleaf QC accepted that the concept of initial interest confusion is not relevant here because no confusion is alleged.46.In Och Ziff Arnold J considered whether “bait and switch” constituted both trade mark infringement and passing off. Dealing with infringement he said: “82 the defendant deliberately uses the claimant’s trade mark as a bait to attract the consumer’s attention, and then exploits the opportunity thus created to switch the consumer’s purchasing intention to his own product or service.” Arnold J described initial interest confusion more generally at [87] as “87 … confusion on the part of the public as to the trade origin of the goods or services in relation to which the impugned sign has been used arising from use of the sign prior to purchase of those goods or services, and in particular confusion arising from use of the sign in advertising or promotional materials. 88 Before turning to the arguments on article 9(1)(b), it is important to bear in mind that in double identity cases falling within article 9(1)(a) a likelihood of confusion is presumed … In general, it is therefore immaterial whether there is a likelihood of confusion in fact, although the jurisprudence of the Court of Justice does require that there be an effect on the one of the functions of the trade mark... In a double identity “bait-and-switch” case, such an effect will not be hard to find.” He went on “90. Counsel for the defendants pointed out that “initial interest confusion” can encompass a range of different situations and submitted that it was important to differentiate between them. In particular, he argued that it was important to distinguish between situations in which the user of the sign was intentionally targeting the trade mark proprietor’s customers and situations where initial interest confusion was caused entirely innocently. He did not dispute that “baitand-switch” use of a similar sign should be actionable, but submitted that this did not militate the conclusion that it should be actionable under art.9(1)(b). Instead, he submitted that this would be more appropriately dealt with under art.9(1)(c). He argued that “likelihood of confusion” was restricted to confusion at the point of sale. … 93. In Whirlpool Corp v Kenwood Ltd [2008] EWHC 1930 (Ch); [2009] R.P.C. 2; [2009] E.T.M.R. 5, Whirlpool was the proprietor of a Community trade mark for a representation of a food mixer. It claimed that Kenwood had infringed the trade mark by marketing a similar design of mixer pursuant to art.9(1)(b) and (c). Geoffrey Hobbs QC sitting as a Deputy High Court Judge held at [75]: “It is sufficient for the purposes of Art.9(1)(b) to establish the existence of a likelihood of confusion in only part of the Community. The concept of ‘using in the course of trade’ is amplified by Art.9(2) in a way that appears to make it sufficient for the purpose of establishing liability under Art.9(1)(b) for there to be ‘a likelihood of confusion on the part of the public’ at any material stage or in relation to any material aspect of the commercialisation of the sign in question. From that I think it follows that ‘bait and switch’ selling can be prevented under Art.9(1)(b) on the basis that the process of buying goods or services should, from selection through to purchase, be free of the distorting effects of confusion. I mention that because Whirlpool’s claim under Art.9(1)(b) relied on the proposition that there would be a likelihood of confusion unless and until the branding of the kMix as a KENWOOD product impinged upon the consciousness of interested consumers: the shape and appearance of the kMix would initially tell them it was a ‘KitchenAid’ product and the KENWOOD branding would not tell them otherwise until after they had gone down the road of selection with a view to purchase. It is possible for a claim to succeed on that basis. However, I do not accept that in the present case there will be any initial confusion in the mind of the relevant average consumer. There will, in my view, be nothing more than an awareness that the product they are looking at is not the one it reminds them of.” The principal authority cited in fn.56 was BP v Kelly. The judgment of the Court of Appeal ([2009] EWCA Civ 753, [2010] R.P.C. 2) did not touch upon this question.” 47.BP Amoco v John Kelly Ltd [2002] FSR 5, mentioned by Arnold J, was a claim for trade mark infringement and passing off where the defendant had adopted get-up for its petrol stations which was predominantly green, the colour registered and used by BP for its petrol stations. The Court of Appeal of Northern Ireland held that there was infringement under s 10(2) as there was a likelihood of confusion, especially when drivers travelling at speed first saw a service station, when they would see the green colour but not the defendant’s other distinguishing indicia. 48.The Court of Appeal considered initial interest confusion in Interflora. Kitchin LJ said:“154 As the passage of the main judgment we have cited immediately above makes clear, the judge considered the doctrine of initial interest confusion in some detail in his judgment in Och-Ziff Management Europe Ltd v OCH Capital Ltd [2010] EWHC 2599 (Ch); [2011] E.T.M.R. 1. As he there explained, initial interest confusion is an expression which derives from US trade mark law and has been used to encompass a range of situations, and the doctrine it identifies is highly controversial. For the purposes of that decision, he defined it (at [87]) as confusion on the part of the public as to the trade origin of the goods or services in relation to which the impugned sign has been used arising from use of the sign prior to purchase of those goods or services, and in particular confusion arising from use of the sign in promotional or advertising materials. He went on to hold (at [101]) that, as so defined, it was actionable under art.9(1)(b) of the Regulation. 155 In our judgment it is not helpful to seek to import the doctrine of initial interest confusion into EU trade mark law, at least so far as it applies to the use of a sign the same as or similar to a trade mark as a keyword in an internet referencing service, and it has the potential positively to mislead. We say that for the following reasons. The Court of Justice has already enunciated in clear and unambiguous terms the test that must be applied under the Directive and the Regulation in determining whether the accused sign has an adverse effect on the origin function of the trade mark. As we have seen, it did so first in Google France in addressing art.5(1)(a) of the Directive (and art.9(1)(a) of the Regulation) and then again in BergSpechte and Portakabin in addressing both art.5(1)(a) and (b) (art.9(1)(a) and (b)). In either case it must be shown that the advertisement does not enable an average internet user, or enables that user only with difficulty, to ascertain whether the goods or services referred to therein originate from the trade mark proprietor or an undertaking economically connected to it or, on the contrary, originate from a third party. Of course, art.5(1)(a) and art.9(1)(a) also afford protection against use in this way of a sign identical to the trade mark if that use is liable adversely to affect one of the other functions of a trade mark, as the Court elaborated in its decision in Interflora (CJEU). 156These tests have been formulated by the Court with great care and reflect the importance of trade marks in developing a system of undistorted competition whilst recognising that their purpose is not to protect their proprietors against fair competition. Moreover, the Court has acknowledged that internet advertising on the basis of keywords corresponding to trade marks is not inherently objectionable because its purpose is, in general, to offer to internet users alternatives to the goods or services of the trade mark proprietors. The tests enunciated by the Court therefore incorporate appropriate checks and balances. In particular, the national court is required to consider the matter from the perspective of the average consumer, a concept we have discussed, and to decide whether the advertiser has enabled that average consumer to ascertain the origin of the advertised goods or services and so make an informed decision. We would emphasise it is not the duty of such advertisers to avoid confusion. 157Returning now to the doctrine of initial interest confusion, it is, as the judge recognised, highly controversial and, as he also recognised, it has been applied to a range of situations in which a sign which is the same as or similar to a registered trade mark is used by a third party in advertisements for goods or services for which it is registered. They extend from, at one end of the spectrum, initial attraction of consumers based upon some kind of association of advertised goods or services with those of the trade mark proprietor or even mere diversion, to, at the other end of the spectrum, initial confusion which gives rise to a real risk that consumers will actually buy the advertised goods or services even though they know they are not the goods or services of the trade mark proprietor. Second, and significantly, it does not incorporate the checks and balances to which we have referred. 158In our view the doctrine of initial interest confusion is therefore an unnecessary and potentially misleading gloss on the tests the Court has articulated and we think it should perform no part of the analysis of our national courts in claims of the kind before us. We consider the judge was therefore wrong to approach the matter as he did.” 49.The Court of Appeal’s reasoning in Interflora was not expressed to cover all kinds of infringement, but plainly I must consider carefully whether any bait and switch selling in this case amounted to an infringement, and if so, why.50.Cosmetic Warriors Limited v Amazon.co.uk Ltd [2014] EWHC 1316 (Ch), cited by the Claimants on the s 25 issue (Issue 8 above), was a case in which bait and switch selling led to a finding of trade mark infringement. It was decided prior to the Interflora appeal discussed above. The infringement claim was based inter alia upon allegations that by buying the registered mark LUSH as a keyword for Google AdWords, the defendants had led people searching for “lush” or “lush bath products” to be directed to the Amazon site, where they would be offered only competing goods, as no genuine LUSH goods were or had been sold by Amazon. Infringement was also alleged through various uses of the Mark on the website, including in drop-down menus, leading to pages which displayed the word LUSH, but which were for other goods. Mr John Baldwin QC sitting as a Deputy Judge of the Chancery Division held that these were indeed infringing acts. As to the adword use he said:“39. Mr Bloch QC, counsel for Lush, submitted the matter was straightforward. Not only could the average consumer not tell without difficulty (cf Google France at [84] and [29.5] above) that the goods referred to in the ad did not come from Lush, but he was positively being told that the goods did come from Lush and these genuine goods could be bought on Amazon. 40.Mr Carr QC, counsel for Amazon, contended however that the matter was not so simple. He submitted that sponsored ads were a familiar feature of life to the internet user, that if that user were at all interested in the ad he would click through and in a moment he would learn that the goods had nothing to do with Lush at all. Further, he submitted that the reference in Google France to the concept of “without difficulty” embraced the notion of some inquiry being made, albeit not an inquiry of any difficulty. That simple inquiry would reveal that Amazon was not offering Lush goods but was offering equivalents. 41.Mr Carr argued that this was not a case of infringement as a result of initial interest confusion of the “bait and switch” variety (cf. Och-Ziff Management Europe Ltd v Och Capital LLP [2010] EWHC 2599 (Ch); [2011] F.S.R. 11 at [79]–[101] per Arnold J.), the reasons being (i) the ease with which a consumer can click away from Amazon as soon as he realises he is not being offered products of interest – contrast, for example, the physical situation of a consumer having been lured into a shop, and (ii) the familiarity the consumer has with sponsored ads including the fact that many sponsored ads are ads for competitor products. 42.In my judgment, Lush establishes infringement with respect to this class of case. I consider that the average consumer seeing the [Google] ad […] would expect to find Lush soap available on the Amazon site and would expect to find it at a competitive price. Moreover, I consider that it is likely that if he were looking for Lush soap and did not find it immediately on the Amazon site, then he would persevere somewhat before giving up. My reason is that the consumer is likely to think that Amazon is a reliable supplier of a very wide range of goods and he would not expect Amazon to be advertising Lush soap for purchase if it were not in fact available for purchase. Thus, on the facts of this case, I reject Mr Carr’s argument to the effect that the average consumer would, without difficulty, ascertain that the goods referred to by the ad were not the goods of or connected with Lush, the claimants.” 51.As for the use of the Lush trade mark on the Amazon site, Mr Baldwin QC concluded that this was also an infringement: “68. … Amazon assumes the consumer is looking for Lush products, or, at least, intended to search for Lush products and thereafter, without a further indication that such products are not available, offers competing products to the consumer. In these circumstances I do not consider the average consumer would ascertain without difficulty that the products he is shown are not the Lush products of the claimants. Indeed, in my judgment it illustrates that Amazon is using the Lush trade mark as a generic indicator of a class of goods, conduct which attacks head on the ability of the mark to act as a guarantee of origin in the claimants and nobody else.” 52.Bait and switch selling is better known in passing off than in the context of trade mark infringement. However, the Claimants’ complaint in passing off is rather limited and is not pleaded on the basis of bait and switch. In the circumstances, I was not referred to any authorities relating to bait and switch amounting to passing off, although for completeness I note that it was considered in Och Ziff at [156]-[157].