'Bust booster' descriptive of breast enlarging products, court finds

Netherlands

The District Court of The Hague has held that the phrase 'bust booster' lacks distinctiveness for products purporting to enlarge women's breasts.

Western Holdings LLC is the owner of the Community trademark INSTANT BUST BOOSTER registered for cosmetics in Class 3 of the Nice Classification. Western advertises its products on 'www.bustboosterworldwide.com'. Western filed suit against Dutch companies Corrado Holding and Klemans Groep for trademark infringement. Corrado used the phrase 'bust booster' on 'www.cobeco.nl' in relation to a cream that can allegedly enlarge women's breasts. Klemans offered a product called Boezembooster ('boezem' meaning 'breasts') on its website 'www.bustbooster.nl'.

The District Court of The Hague dismissed Western's claim, even though the defendants did not challenge the validity of the INSTANT BUST BOOSTER Community trademark. After consulting the Webster's dictionary, the court found that 'bust' means 'breasts of a woman' and 'boost' means to 'increase'; accordingly, the court held that 'bust booster' is just a combination of two descriptive words. In addition, the court did not find that the combination of 'bust' and 'booster' added up to more than the sum of its parts. Applying the principle that anyone should be entitled to use a descriptive sign (DOUBLEMINT - see ECJ reverses DOUBLEMINT decision), the court dismissed Western's claims.

Paul Reeskamp, Allen & Overy LLP, Amsterdam

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