Tuesday, 18 March 2014
Upholding a claim brought by confectionery manufacturer Haribo, the Regional Court of Cologne in December 2012 (Regional Court of Cologne (Landgericht Köln), 33O 803/11) decided that sweet maker 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. While the court had acknowledged that Lindt did not use the word sign GOLDBÄREN , it held that the sight of the shape of Lindt's three-dimensional chocolate bears inevitably produced connotations with Haribo's bears, which could result in a dilution of Haribo's trade mark rights. The Regional Court expressly noted the significance of the legal issues raised since there had so far been no decision by the German Federal Court of Justice (Bundesgerichtshof) on the question of a conflict between a word mark and a three-dimensional product design.
German media now reports that, following the appeal proceedings in this dispute, the Higher Regional Court has apparently disagreed with the Regional Court and does not regard Lindt's chocolate bears as infringing. The court will release its decision on 11 April 2014. According to German newspaper FAZ, both sweet makers are determined to appeal this matter all the way to the Bundesgerichtshof in order to achieve legal certainty.
This will be an interesting case to watch. May we even see a referral to the CJEU?