Wednesday 23 September 2015

Gold Bear or Golden Teddy?

This blogger loves both Haribo Gummi Bears and chocolate in all shapes and would never risk to confuse edible gummi animals with with edible chocolate animals (in particular rabbits), even in cases where both belong to the same zoological species.

It was therefore surprising to him that the judges of the judges of the cologne district court found a risk of confusion between Haribo Gold-Bears (Goldbären) and the Lindt Chocolate Teddy - a sitting wrapped in Gold foil.

 The case went through the instances to the BGH, who judged today that a likelihood of confusion does  indeed not exist.

According to the BGH, the comparison between a word mark and the three dimensional shape of the product is to be limited to the semantic content of the word mark (Goldbären) without consideration of the shape of the products (Gummi Bears) sold under that word mark. Further, strict requirements are to be imposed in order to avoid an extension of the monopoly of the trademark to product designs.

A precondition for the likelihood of confusion is that the word mark is an obvious, natural and exhaustive (naheliegende, ungezwungene und erschöpfende ) designation of the three-dimensional design. It is not sufficient that the trademark is only one among multiple obvious designations of the product shape.

In the case at issue, the BGH found that the chocolate bear could have been designated as "Teddy", "Schokoladen-Bär" or "Schokoladen-Teddy" instead of "Goldbär" and concludes that the likelihood of confusion does not exist.

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