17. March 2014
The two world famous confectionery producers, Haribo and the Swiss chocolatier Lindt & Sprüngli, are locked in a bitter struggle over golden bear trademark rights. An appeal has now been lodged with the Cologne Higher Regional Court.
Haribo claims that Lindt’s newly introduced chocolate bear violates the golden gummy bear maker’s trademark rights.
In 2012, the Swiss maîtres Chocolatiers were searching for a parallel to its worldwide recognised chocolate Easter bunny. The breakthrough came in the form of a chocolate golden bear, which was introduced just before the beginning of the Christmas celebrations.
Much like its chocolate Easter bunny counterpart, the Christmas chocolate bear was given a red ribbon. However, the three dimensional form of the chocolate bear strongly resembles the plump and the content-looking gummy bear.
Haribo argues that consumers could confuse Lindt’s chocolate bear with its well-known gummy bear and that they could draw the false conclusion that the chocolate bear has been produced by Haribo. In Haribo’s view this amounts to a dilution in the separation between the two brand manufacturers and consumers can no longer distinguish between them.
In its trademark lawsuit, Haribo sought an injunction and payment of compensation.
The court of first instance followed Haribo’s argument and allowed the claim (judgment from 18.12.2012, case ref. 33 O 803/11).
The Cologne judges were of the opinion that in selling a golden bear as its Christmas product, Lindt had taken advantage of the profile of Haribo’s golden gummy bears, which according to one study are known by 90% of German citizens.
The court gave particular weight in its decision to the assumption that consumers would associate a bear wrapped in gold with the registered brand name “Goldbär(chen)” (small golden bear).
In the courts view, it makes no difference that the products are sold in different market segments, namely chocolate and sweet segment. Instead the court stated that the confectionery market should be considered a homogeneous market. Haribo has been precluded from creating and selling its own chocolate bear on the basis of its golden gummy bear, which would be distinguishable from that which is being sold by its competitor, Lindt, the court concluded.
During the Christmas period in 2012, Lindt sold around 40 million golden chocolate bears and plans to exploit the product’s popularity in the future. The Swiss chocolatiers have therefore announced, that if need be, they are willing to appeal the case all the way the Germany’s Federal Court of Justice.
The Cologne Higher Regional Court’s decision is awaited with anticipation.
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