A rather unusual dispute between chocolate and gummy bears is currently gripping the courts of Cologne in Germany. But what has a fruit-flavoured gum candy treat for children and adults alike to do with a chocolate bear? It is perhaps the peculiarity of trademark law that this question has developed in a multi-million legal dispute involving the German sweet manufacturer Haribo and the Swiss chocolatier Lindt.

Lindt, which is of course well-known for its chocolate Easter bunny in gold foil, started marketing its “Lindt-Teddy” in 2011 in Germany. The Teddy, not only because of what is wrapped under its gold foil, looks rather sweet:

However, the Teddy was not to Haribo’s taste. Haribo considered the Lindt-Teddy an infringement of its trademark rights in its famous Gold Bear and sued Lindt for an infringement of its trademark registration for the word mark GOLD BEAR. It feared a dilution of its valuable GOLD BEAR mark in a market that is known to be highly competitive.

A trademark conflict between a word mark on the one hand and a three-dimensional mark is extremely rare. In fact, the conflict has not been decided by any Court of Appeal in Germany or indeed the German Federal Supreme Court which forms the last instance in civil matters.

It is therefore not really surprising that the battle between Haribo and Lindt before the courts in Cologne has attracted attention even in German mass media. The District of Cologne, at first instance, upheld Haribo’s claim and held that the Lindt-Teddy constitutes an infringement of Haribo’s word mark GOLD BEAR. More specifically, it found that the Teddy was detrimental to the reputation of Haribo’s mark and that consumers would associate the Teddy with Haribo’s Gold Bears.

In a preliminary opinion issued on 7 March 2014, the Court of Appeal in Cologne disagreed. The judges felt that consumers would associate the Teddy more likely with Lindt’s Easter Bunny as opposed to Haribo’s Gold Bears. The first instance court was criticised as having put too much weight on the colour and the shape of the bear. In the Court of Appeal’s view, the correct interpretation of the overall impression of Lindt’s Teddy, as a necessary criteria of a likelihood of confusion, requires taking the prominently placed Lindt brand into consideration.

It is therefore widely expected that the Court of Appeal will uphold Lindt’s appeal when handing down its decision on 11 April 2014.

However, Lindt and Haribo appear to have an appetite to see the dispute through until the last bear is eaten: Both manufacturers have already confirmed that the losing party will appeal the decision to the German Federal Supreme Court. We will continue to monitor the dispute for our sweet savvy readers.