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On 18 December 2012, the Regional Court of Cologne decided that Swiss Confectioner Lindt’s gold foiled teddy amounted to a visual representation of German sweet maker Haribo’s famous Gold Bear.
The court held that the visual similarities would cause connotations with Haribo’s bears and upheld Haribo’s claim against the distribution of Lindt’s bears in Germany.
In the case, Haribo argued that its bears and its word trade mark for ‘Goldbär’ (German for gold bear) was known to 95% of the relevant German consumer. Lindt argued that the gold foil and red ribbon followed the form used on its chocolate bunnies and invited the court to find that the competing products did not look similar and that consumers would not be confused.
However, the courts agreed with Haribo’s view and said that consumers would refer to Lindt’s bear as the ‘gold bear’ due to its visual appearance. They held that this would result in a dilution of Haribo’s rights.
The courts have allowed an appeal on the basis that there has so far been no ruling by the German Federal Supreme Court on the question of a conflict between a word mark and a three-dimensional product design.
Lindt have appealed the decision to a higher court and a decision is expected soon.
Azhar Sadique 8 February 2013