THOMSON LIFE principle kills LIFESTYLE IN DIGITAL

The Antwerp Commercial Court has ordered the cancellation of the mark LIFESTYLE IN DIGITAL (Case A/04/16263, February 23 2007), finding that it was confusingly similar to the mark LIFESTYLE held by Bose Corporation, the well-known manufacturer of high-performing audio and video equipment.

Bose markets home entertainment systems under the word mark LIFESTYLE. The mark has been registered in Benelux in Class 9 of the Nice Classification since 1989. In 2002 Belgian company Ben Jans Electronics, which trades under the name Technissimo, applied for and obtained registration for the mark LIFESTYLE IN DIGITAL for multimedia equipment in Class 9 as well as various multimedia-related furniture and consultancy services in Classes 20 and 42.

In 2004 Bose challenged the use and registration of the LIFESTYLE IN DIGITAL mark before the Antwerp Commercial Court, claiming that the junior mark was confusingly similar to its own LIFESTYLE mark. Ben Jans had allegedly not effectively started marketing any products or services under the LIFESTYLE IN DIGITAL mark at the time.

The court found in Bose's favour. It held that LIFESTYLE was not a very strong mark per se, but it had incontestably acquired some distinctiveness through intensive use in relation to home entertainment systems.

The court considered that the furniture and consultancy services to which Ben Jans's mark applied were complementary to Bose's systems and that there existed similarity in respect of all the goods concerned. The court took into account the fact that Ben Jans's products and services, and Bose's products were likely to be found at the same interior design fairs and to be advertised in the same type of home interior magazines.

It further found a high degree of similarity between the conflicting signs. In coming to this conclusion, the court attached considerable importance to the fact that the component LIFESTYLE played "an independent distinctive role" in Ben Jans's mark.

The court upheld the claim of likelihood of confusion in light of:

• the similarity between the products;
  
  
• the high degree of similarity between the signs; and
  
  
• the reasonable degree of distinctiveness of the senior mark.

In addition to ordering the invalidation of Ben Jans's mark and granting an injunction, the court granted Bose €3,000 in damages. The court indicated that it would have granted more if Bose had been able to show that Ben Jans had started commercializing products and/or services under the LIFESTYLE IN DIGITAL mark.

The decision refers to the principles and vocabulary put forward by the European Court of Justice (ECJ) in the THOMSON LIFE decision and, more specifically, the relevance of components that play an "independent distinctive role" in a trademark (see LIFE Case allows ECJ to clear up confusion over composite marks). The LIFESTYLE decision illustrates the usefulness of the 'independent distinctive role' notion far beyond the facts that gave rise to the ECJ ruling. In the present case, the Antwerp Commercial Court could, however, have come to the same conclusion even without using the 'independent distinctive role' notion.

Nicolas Clarembeaux, Altius, Brussels