Daniel Alexander QC and Max Keay appeared for the defendants, Amazon, in the hearing of consequential matters arising out of the trial judgment in this trade mark dispute. With the exception of admitted historical infringements, the claimants’ claims for trade mark infringement were dismissed. In particular, it had been held that Amazon had not used the claimants’ trade marks in the course of trade in the UK or EU by listing products on amazon.com because such use was not targeted at the UK or EU consumer.
Notwithstanding that Amazon had been held to have acted reasonably and responsibly, the claimants argued that they were entitled to an injunction on the basis of the admitted historical infringements. The claimants argued an injunction was appropriate because Amazon had never offered a formal undertaking not to remove restrictions on future infringements which it had put in place in 2019.
In response, Amazon submitted (inter alia) that the restrictions on future infringements had been largely in place before proceedings were served and, following the leading judgment of Neuberger LJ (as he then was) in Landor v Hawa International Ltd v Azure Designs Ltd [2006] EWCA Civ 1285, it was “plainly inappropriate in principle to grant an injunction in favour of the claimant against a defendant who clearly and unequivocally agreed, before the action for the injunction was even started, to refrain from taking that very action which the injunction would have forbidden him from taking.”
Michael Green J held that there was no real threat of any continuing infringement and an injunction such as requested would be wholly disproportionate to the findings in the trial judgment. The claimants were ordered to pay 95% of Amazon’s costs, of which 55% of the actual incurred costs were to be paid by way of interim payment.