The final stage of the Haribo battle against the Lindt chocolate bear came to a grizzly end recently when the German Bundeserichthof found in Lindt’s favour that its golden chocolate bear did not infringe Haribo’s rights in either (i) its word mark GOLDBEAR or (ii) its subsequent mark GOLD-TEDDY (because it was filed after it had known of Lindt’s chocolate bear) or (iii) it’s 2D ‘bear’ mark (iv) nor was the Lindt bear similar enough to the shape of the Haribo bears to fall foul of unfair competition law claims.

To my mind, it would be difficult for a 3-D shape to infringe a word mark particularly when the words ‘GOLD’ and ‘BEAR’ are not the trade mark under which the Lindt bears were sold – they were sold under the LINDT brand. This is obviously a simplification of the legal arguments concerning similarity in meaning and the obvious and nature designation of the shape of the goods – however – despite all the legal argument the fact remains that the actual Lindt bear did not infringe the GOLDBEAR word mark.

I anticipate that the result may have been different had the Haribo 2D ‘bear’ mark been a registered 3D shape mark. Perhaps in that case the Lindt bear would have been too similar, hey Goldilocks?