Haribo vs. Lindt

On 11 April 2014 the Higher Regional Court of Cologne overturned the first instance decision in the trademark battle between the two well-known candy manufactures Haribo (gummi bears) and Lindt (chocolate). The Regional Court Cologne came to the decision that there is likelihood of confusion between the “Lindt Chocolate Teddy” and the “Haribo Goldbär”(LG Köln on 18.12.2012; Decision 33 O 803/11). The Higher Regional Court instead decided totally different and has to come to the conclusion that the Haribo Goldbär is not infringed by the sale of the Lindt Chocolate Teddy (see: press release in German OLG Köln on 11.04.2014; Decision 6 U 230/12). This decision is especially interesting because there is no settled case law in Germany yet whether two dimensional design or pure word marks can be infringed by three dimensional objects.    Goldbär/Gold-Teddy                        word mark   +    two- dimensional design mark vs. three- dimensional object   Background of the Case and Subject Matter In the present case, the well-known German company “Haribo” filed an opposition against the “Lindt and Sprüngli AG”. Both are famous producers of sweets. Haribo has various German trademark rights for the words “Goldbär” and “Gold-Teddy”, the shapeless color mark “gold” and a word/design Community Trademark for “Goldbär” (see above). Haribo is of the opinion that the “Lindt Chocolate Teddy” infringes their protected word marks and their design marks (see above). Of importance to know is that the Haribo “Goldbär” can claim a high reputation of 90 %. “Lindt” instead argued that the “Chocolate Teddy” for the Christmas time is a logical development of the “Lindt Rabbit” for Easter. Attention should also be paid to the selling time around Christmas. During this time the customers are used to a wide range of chocolate animals with many different designs and in countless variations, especially in gold foil with red bows and ribbons. Also, Lindt’s sweets are made out of chocolate and quite different from the gummi bears of Haribo which are made out of wine gummi. Finally, Lindt’s “Choclate Teddy” is three dimensional and Haribo’s protected marks are two dimensional or words marks. All in all, Lindt sees no likelihood of confusion. Decision In first instance the Regional Court of Cologne decided that a likelihood of confusion exists. The court’s decision is based on the fact that Lindt and Haribo are from the same industrial sector, the high reputation of Haribo’s “Goldbär” and the fact that even during Christmas time only Lindt’s “Teddy” has the same form, color and ribbon like Haribo’s “Goldbär”. As a result, the Chocolate Teddy can be seen as an infringement of the protected word “Goldbär” and the word/design mark of the “Goldbär”. Therefore the Lindt “Teddy” as a three dimensional object infringes Haribo’s trademark rights. Lindt appealed this decision and has succeeded before the Higher Court of Cologne on 11 April 2014. Their point of view is totally different and overruled the first instance decision. In the opinion of the Higher Court, the first instance put too much emphasis on the color and the shape of the bear. In the court's view, the focus in this case should be on the product as a whole and how customer perceives it. The court also especially takes into account the well-known name “Lindt” located in the middle of the Choco Teddy which indicates the origin of the product. The court does not expect that Lindt wants to capitalize on the high reputation of the Haribo “Goldbär” because Lindt’s brand is very famous as well. Rather, the “Choclate Teddy” is in consistency based on the success of the “Easter Chocolate Rabbit” of Lindt. Consequently, Lindt may still sell its “Chocolate Teddy”, whereas, both parties wish this case to be decided by the German Supreme Court... therefore, the battle is likely to be continued.