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| Lindt's teddy |
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| The original gold bears |
The case: upholding a claim brought by confectionery manufacturer Haribo, the first instance court, the Regional Court of Cologne (case reference: 33O 803/11) in December 2012 decided that Lindt's three-dimensional gold-foiled chocolate bears amounted to an infringing ‘visual representation’of Haribo's well-known GOLDBÄREN (in English Gold Bear) gummy bear word marks: Lindt's chocolate bears inevitably evoked connotations with Haribo's bears, which could dilute of Haribo's marks.
On appeal by Lindt, the Higher Regional Court of Cologne (see here; case reference: 6 U 230/12 of 11 April 2014) – in essence – agreed with the defendants: the judges explained that there were several additional levels of abstraction separating the Lindt's Chocolate teddy shape from the Goldbär word mark. Therefore, the judges held that Lindt had not taken unfair advantage of Haribo's Goldbär by "approximating" its Lindt teddy to Haribo's gold bears. The Lindt teddy was an obvious addition to Lindt's product line, which included the famous Lindt Easter bunnies.It is now for the BGH to decide whether Lindt's teddies are conceptually or otherwise too similar to Haribo's earlier rights. May this even be another reference to the CJEU? Will all evidence make it safely to the BGH? Our readers will recall that the BGH had reversed and remanded ajudgment by OLG Frankfurt in one of the Easter Bunny disputes, mainly because the Riegelein chocolate bunny submitted in evidence was missing from the files (please see here and here for reports on this odd event) ... Only time will tell!
