German Federal Court Finds Three-Dimensional Chocolate Bear is not Confusing with Bear Word Mark or Design

On September 23, 2015, the German Bundesgerichthof (BGH) rejected a claim by the German confectionery company Haribo that Lindt’s golden foil-wrapped chocolate bears were confusing with its GOLDBÄR (Gold Bear) word mark and yellow cartoon bear design.

The Court found that similarity between a word mark and a three-dimensional product design must be a similarity in meaning between the mark and the design – not a comparison between the design and the products sold under the word mark. The BGH found no similarity in meaning since Lindt’s product could just as easily be called a “Teddy”, “Chocolate Bear” or “Chocolate Teddy” as a “Gold Bear.” Haribo’s claim based on product similarity also failed, as the BGH found that the products were not sufficiently similar.

Haribo had been successful at first instance, but lost on appeal to the Oberlandesgericht, the higher regional court in Cologne. The decision by the BGH means that Haribo has exhausted its national rights of appeal. Some reports suggest that Haribo may appeal the decision to the European Court of Justice, depending on the reasons given by the BGH.

For related commentary, visit:

http://tinyurl.com/nzrdobl and http://tinyurl.com/pc8gll2.