Haribo not so golden as German Court finds no infringement of its trade mark “Goldbären” by Lindt28th September 2015
A German court of first instance decision has been overturned to hold Lindt is not infringing Haribo’s word mark GOLDBEAR (used for Haribo’s popular gummy bear sweets) by sale of Lindt’s three-dimensional gold foil wrapped chocolate bear, described by Lindt as the “Lindt Teddy”.
Although Haribo’s brands “Golden Bears” and “Golden Bear” are well known in Germany and both Lindt and Haribo sell confectionary, the first instance decision was notable as it was the first decision which held a registered word trade mark could be infringed by a 3D shape. This was based on the Lindt chocolate being the pictorial representation of Haribo’s word trade mark.
However, the Cologne Court of Appeal has now held that only Haribo’s GOLDBEAR word mark and the shape of the Lindt Teddy should be compared in order to establish whether there was infringement GOLDBEAR word mark, and not the shape of the Lindt Teddy and the shape of Haribo’s gummy bears sold under the word mark GOLDBEAR (see pictures below).
As this dispute concerned a word mark by a 3D shape, the similarity between the signs required for a finding of infringement does not derive from a similarity in sound or image of the mark, but from a similarity in meaning. This would require the GOLDBEAR word mark to be the obvious, casual and exhaustive designation of the 3D shape from the target consumers’ view. Is not sufficient for the word mark to be only one of several names which could describe the Lindt Teddy.
The Lindt chocolate bear was not most obviously and naturally referred to as GOLDBEAR, but could at least as obviously be referred to as “teddy”, “chocolate bear” or “chocolate teddy”. Therefore, there was no similarity of meaning between the Lindt Teddy and the GOLDBEAR trade mark and no infringement of the GOLDBEAR trade mark by the Lindt Teddy.
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