The Lindt Teddy is not a Gold Bear

This was the ruling of the Higher Regional Court (OLG) Cologne in the legal dispute between the company Haribo GmbH & Co. KG and two companies of the Lindt & Sprüngli Group, which concerned the infringement of the Gold Bears trade mark. Ultimately, the court dismissed Haribo's action.

As is well known, the company Haribo markets fruit gum in the shape of bears and is, among other things, the proprietor of theword marks "GOLDBÄR" and "GOLDBÄREN". Since March 2011, Lindt has marketed chocolate figures in the shape of bears, wrapped in gold foil and wearing a red ribbon around their necks. Haribo saw this as an infringement of the marks registered in its name and sought cessation, information and damages through its action. The design of the Lindt Teddy was nothing other than a pictorial representation of the word "GOLDBÄR".

The Regional Court (LG) Cologne had upheld the action in the first instance. In the course of the appeal, Lindt argued that the Lindt Teddy merely represented a logical and consistent continuation of its own product line, with the presentation being guided in particular by the "Gold Bunny".

Court's decision

In its judgment of 11.04.2014 (6 U 230/12), the Higher Regional Court (OLG) Cologne essentially agreed with Lindt's arguments. An infringement of a word mark such as "Goldbär" by a three-dimensional figure – such as the chocolate teddy – could occur if the designation "Goldbär" were the obvious, natural, comprehensive and, as it were, memorable designation that would suggest itself to the consumer and constitute the most apt description of the figure. However, the court found this not to be the case with the Lindt Teddy. The overall impression of the chocolate teddy did not consist solely of shape and colour. Rather, the imprint with the designation "Lindt" together with the logo or the imprint "Lindt-Teddy" was decisive. The imprint placed in the middle of the bear's belly represented a stronglydistinctive element which, according to the relevant overall impression, had a defining character compared to the aesthetic design features of shape and colour, and was perceived by purchasers as an indication of origin of the companies of the Lindt & Sprüngli Group. Furthermore, the court saw no attempt in the marketing of the Lindt Teddy to approximate the Gold Bear in order to exploit in an unfair manner the quality expectations that consumers associate with the term "Goldbären". This was contradicted by the fact that the companies of the Lindt & Sprüngli Group were themselves well-known manufacturers in the confectionery segment and the product in question fitted into their own product line.

Conclusion:

In the view of the Higher Regional Court (OLG) Cologne, colour and shape alone of a figure are not sufficient to establish infringement of a word mark. Rather, what matters is theoverall impression. In the present case, according to the court's assessment, it was sufficient for the exclusion of trade mark infringement that the imprint "Lindt" or "Lindt-Teddy" was applied to the bear figure. However, the Senate allowed revision, so it remains to be seen whether the Federal Court of Justice (BGH) will now address this issue.