Haribo the confectionary manufacturer had issued a claim against Lindt the popular chocolate manufacturer for trade mark infringement. Haribo claimed that Lindt’s three-dimensional gold-foiled bears were an infringing ‘visual representation’ of Haribo’s popular GOLDBARREN (Gold Bear) word trade mark.
The regional Court dealing with the case decided that although Lindt had not used the word sign GOLDBAREN, it held that the overall look of Lindt’s 3D chocolate bears was similar to Haribo’s gold bears, this led to the finding that Lindt’s use of the gold bear could result in a dilution of Haribo’s trade mark rights.
The Higher regional Court agreed with the defendants. The judges stated that theoretically a word trademark such as the Haribo GOLDBAR was capable of being infringed by a three dimensional shape such as Lindt’s chocolate gold bear, however this could only be the case if the sign ‘gold bear’ was the “obvious, unforced, self contained and distinctive title” i.e. the closest most accurate description of that shape sign.
The judge did not agree that this was the case in these circumstances as there was several differences between word mark and the three dimensional gold bear, for example Lindt’s chocolate bears had additional features such as the imprints of the trade marks Lindt and Lindt teddy imprinted on the bear, the judges acknowledged the fact that consumers would have regard to the Lindt imprints on the gold bears.
In conclusion the Court disagreed with Haribo and held that Lindt had not taken unfair advantage of Haribo’s trade mark. The judges also made reference to the important fact that the defendants Lindt, were also very well known confectionary manufacturers and as such, consumers would clearly be capable of differentiating as opposed to associating the two manufacturers with one another.