Dive Brief:

• Lush Cosmetics, which sells all-natural, heavily scented bath and beauty products, doesn’t sell its wares on Amazon UK and sells a few on its American site, but when customers search for them, the Amazon website suggests similar products from other companies.

• In some cases those products are startlingly and, the UK High Court ruled, confusingly similar to Lush-branded products. The court noted it was difficult for average people to know the difference, and Amazon also shows consumers similar non-Lush products through Google AdWords.

• While the ruling allows Amazon to use “Lush” as a search term that would produce ads or suggestions for similar products, it must take more pains to be clear when they are not Lush products.

Dive Insight:

When Lush sued in December, part of its complaint was that Amazon didn’t make it clear that it was selling products that weren’t Lush. In fact, to add to the confusion, some products used “lush” as an adjective in its description.

Intellectual property lawyers are already warning that this ruling could have dire consequences for companies’ use of brand names in internet advertising. That's likely true, somewhat, but it should be noted that the search results on Amazon’s UK website were quite deceptive, not just in Amazon’s use of the word “Lush” or the photography, but also in the actual design of the products themselves. This begs the question — wasn't the trademark infringement at least in part a problem of Amazon allowing a copycat product to be sold on its website?

A few Lush products are indeed available on Amazon’s American site, where the suggested non-Lush products are a lot less confusing. Sure, online retailers may need to “reconsider their approach,” as one lawyer said, when promoting and marketing alternative products. But we're not talking about stifling internet advertising, here. It is, after all, reasonable for consumers to expect companies not to work so hard to be deceptive.