“Lifestyle Equities CV and another v. Amazon UK Services Ltd and others”
摘要
It is for national courts to assess, case by case, whether there are 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, is targeted at consumers in that territory. Where the offer for sale is accompanied by details of the geographic areas to which the seller is prepared to dispatch the product, this kind of detail is particularly important in the assessment. It is not necessary to establish that the foreign trader had the subjective intention of targeting consumers in a certain country [here: in the UK]. If, however, such a subjective intention is established, then it can ease the path to a finding that the foreign trader’s activities, viewed objectively from the perspective of the average consumer, were and are targeted at consumers in that country [here: the UK]. It is enough that a significant proportion of the relevant consumers (i.e. those who are reasonably well informed and circumspect) would consider the website to be directed and targeted at them. Although it cannot be entirely ruled out as a relevant factor, the delivery of the goods to the country in question [here: the UK] is not, of itself, weighty evidence that the advertisement and offers for sale are targeted at consumers there. Whether or not there has been targeting in the relevant sense depends upon what is done up to the moment of the conclusion of the contract of sale, not thereafter. 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. The fact that a website is primarily targeted at one territory in not 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 the website is designed so as to mould itself automatically to an incoming consumer’s requirements by reference to the location of the consumer’s IP address. It is a natural part of targeting consumers in a particular territory that the trader takes trouble to configure the website in an as user-friendly way as possible for consumers in that territory, in particular by highlighting all the goods available for shipment to that country [here: the UK] and by giving the consumer an option to convert all prices at a current exchange rate [here: from US dollars to sterling].