CLASS 99
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FRIDAY, 28 DECEMBER 2012
Eye and mouth – A conflict between shape and words
The Cologne District Court, in a decision of 18
December 2012 widely reported in the German press (full text in German to be
found here), held that a chocolate bear wrapped in a golden foil,
made by Chocoladefabriken Lindt & Sprüngli (not to be confused with the
LINDT Easter bunny previously the subject of many decisions, inter alia the following one by the ECJ), constituted an infringement of the German word mark No
974380 “Goldbären” (= “golden bears”) registered for HARIBO, a well-known Bonn-based producer of jelly candies (but not of chocolates). The
Court found the accused golden-bear-like shape (actually more like a teddy bear
than a regular bear) to be the “visual representation” of the word “Goldbären”. Here is the summary provided by the Court’s press release (in German).
Tags: germany, infringement, trade mark, word mark,
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Eye and mouth – A conflict between shape and words
This is a Christmas gift to the IP community
consisting of design fans and connoisseurs. A trademark case that has some
relation to design law: Can a word mark be infringed by a three-dimensional
configuration which some may describe or call by using a word which is the same
as the word mark?
 |
| To bear or not to bear? |
Actually, there is no precedent that we are aware of covering
this particular conflict. The parties, well aware of that and even ahead of any
appeal decision, agreed to pursue their case up to the German Supreme Court,
where it is unlikely to arrive before some time in 2013 or 2014, from where it
may well end up before the European Court of Justice.
Interestingly, the
Cologne District Court confirmed conceptual identity of signs but neither applied
nor even discussed the ECJ's “Thomson Life” test (i.e., any independent distinctive role of the earlier mark
within the accused shape) nor any potential neutralization of that conceptual
identity due to oral and/or visual dissimilarities, which would have appeared
to be necessary in view of the well-known character of the LINDT word and logo.
Therefore, we consider it to be more
likely than not that the decision will not withstand the scrutiny of the Cologne
Appeal Court.
Posted by: Henning Hartwig @ 08.03Tags: germany, infringement, trade mark, word mark,
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MARQUES does not guarantee the accuracy of the information in this blog. The views are those of the individual contributors and do not necessarily reflect those of MARQUES. Seek professional advice before action on any information included here.
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