Gummy bears continue to be fought over in the long-running trademark dispute between confectionary companies Haribo and Lindt as the Higher Regional Court of Cologne rules in Lindt’s favour stating that it did not find the two bears to be similar.
In December 2012 it seemed as if Haribo would receive a sweet settlement when the Regional Court of Cologne (see our original post here) decided that Lindt’s three-dimensional gold-foiled chocolate bears amounted to an infringement of the ‘visual representation’ of Haribo’s well-known gummy gold bears.
The Court believed that consumers would be confused between Lindt’s chocolate bears, which are distributed in gold foil with a red ribbon and Haribo’s gummy bears, which are sold in packets bearing a cartoon yellow bear wearing a red ribbon. This was despite Lindt marketing their bears under “Lindt Bear” while Haribo marketed their gummy bears under “GOLDBÄREN” (gold bear in English).
The Higher Regional Court pawed for thought and concurred with the lower Court that a word trademark could be infringed by a three-dimensional shape. However, otherwise it disagreed with the lower Court’s ruling, stating that this is only where the sign (the gold bear mark) is obvious and the most fitting description for that shape sign. This was not the case here. There were several differences between the two bears, the Lindt Teddy was an addition to the Lindt Bunny product line and the overall impression of the Lindt bear was not just its colour and shape but also the imprinted Lindt wording.
Therefore, the Lindt bear won the battle. Nonetheless, in the not quite so happy world of Haribo it may not have won the war – it is likely that this case will go all the way up to the German Federal Supreme Court.