Lindt v Harribo Golden bear v Gummy bear!

Lindt v Harribo Golden bear v Gummy bear!

A recent case required a German court to look for the bear necessities, the simple bear necessities, and decide which of two confection companies should forget about their worries and their strife.

Since 2011, the Swiss chocolate company, Lindt, has made a chocolate bear with a golden foil wrapping and sold millions of them. The German company Haribo has, since the 1960s, made fruit gum sweets shaped as bears and known as “gummy bears”. In a gripping battle of the bears, Haribo sued Lindt for a violation of its trademark in “Golden Bear”.

At the Bundesgerichtshof, Germany’s federal court, Haribo argued that there was only room for one golden bear in the retail woods and that burnished beast was the confection for which they had a trademark. Haribo said the Lindt teddy was an unfair imitation of its gummy bears and that customers might be confused.

Lindt argued that it had not copied Haribo’s golden bear, but merely evolved its bear from the styling of the golden bunnies that it has successfully sold since 1952.

Ruling for Lindt, the court stated that Haribo’s trademark had not been violated just because one way to describe the Lindt product was “a gold bear”. Terms such as “teddy”, “chocolate bear” or “chocolate teddy”, the court noted, could equally be used to describe the Lindt treat.

The court noted that if a claim for trademark violation such as Haribo’s were to succeed on the basis that one company owned a design in all confectionary bears that were golden, then society would suffer a “product design monopolisation”.

The court did not accept that customers would be confused by an alleged similarity between a hollow, milk-chocolate bear wrapped in gold foil and a chewy fruit-gum sweet.

The German court was more restrained in its language than Mr Justice Foster when he dealt with a similar legal point in a case in 1978 in which the owners of a communist paper called the Morning Star tried to stop a new British tabloid from calling itself the Daily Star, lest the public became confused.

The judge said “the two papers are so different in every way that only a moron in a hurry would be misled”.

Commercial and intellectual property law are sprinkled with many confectionary cases.

“There are no metaphysics on earth like chocolate,” the Portuguese poet Fernando Pessoa wrote — a truth reflected in the gigantic market for the confection and the substantial litigation it has consequently provoked.

In 2013, Nestlé won a case against Cadbury, over Cadbury’s attempt to trademark Pantone 2865c — the precise purple colour of its Dairy Milk bars. The Court of Appeal ruled the trademark application lacked “the required clarity, precision, self-containment, durability and objectivity to qualify for registration”.

In a recent hearing in another dispute, the European Court of Justice was unconvinced by the argument of Nestlé that it had the right to trademark the shape of its four-finger KitKat bar in the UK. The court noted that the company had to demonstrate the public relied on the shape alone to identify the snack.

Bears have featured in a variety of cases, though the most unusual concerned an ursine defendant. In Macedonia, in 2008, Zoran Kiseloski, appeared as the chief prosecution witness in a case against an unnamed brown bear.

The bear was accused of stealing honey from the hives of Mr Kiseloski, a bee keeper. Mr Kiseloski had tried to deter the bear using a variety of techniques. His pièce de résistance was the establishment of full flood-lighting around his hives and a grand outdoor sound system through which he pumped the “turbo-folk” album Songs of Ceca at a fur-raising decibel level.

Shockingly bad as that sounds, the lure of honey was stronger than the beats of the bee keeper’s music. The bear was convicted but was found to be impecunious so the state had to pay the relevant compensation of 130,000 Macedonian denar (£1,700).

The bear did not make an appearance in court to be questioned by the prosecutor, and seems to have taken the view of Winnie the Pooh that “It is more fun to talk with someone who doesn’t use long, difficult words but rather short, easy words like “What about lunch?”.

Gary Slapper is global professor at New York University, and director of its London campus. His latest book, Further Weird Cases, is published by Wildy, Simmonds & Hill. You can follow him on Twitter @garyslapper

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