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Lindt’s chocolate bears: when can a three-dimensional mark infringe a work mark?

Print publication

29/05/2014

In December 2012, the Regional Court of Cologne ruled that Lindt’s chocolate bear (depicted) infringed Haribo’s GOLDBÄREN (in English “Gold Bear”) word marks. The court accepted that Lindt did not use the word GOLDBÄREN but it held that the sight of Lindt’s three-dimensional chocolate bears would call to mind Haribo’s gold bears, resulting in a dilution of its mark. Lindt appealed to the Higher Regional Court of Cologne.

Lindt Chocolate Bear

The Appeal Court ruled that whilst a word mark, such as GOLDBÄREN, could be infringed by a three-dimensional shape, there was no such infringement in this case. There would only be an infringement where the sign was the obvious, unforced, self-contained and distinctive title and thus the most fitting description of the shape sign. In the Court’s opinion, that was not the case here as there were additional levels of abstraction that separated Lindt’s chocolate teddy shape from the GOLDBÄREN mark. The Court considered that the first instance court had attached too much importance to the colour and shape of the Lindt bear. In particular, the overall impression conveyed by Lindt’s chocolate teddy was affected by the imprints of “Lindt”, “Lindt-Teddy” and the Lindt logo, a factor to which the first instance court had attributed insufficient weight. Consumers would regard the Lindt-Teddy as an indication of origin.

The Court rejected the argument that Lindt was taking unfair advantage of Haribo, instead taking the view that teddy bears were an obvious extension to the Lindt product line, notably its chocolate bunnies – itself the subject of trade mark litigation, as we have previously reported.

The case is noteworthy as conflicts between a word mark and a three-dimensional figurative mark are rare.

Haribo may appeal to the Federal Supreme Court.