By judgment of September 23, 2015 (I ZR 105/14) the German Federal Supreme Court has decided on the dispute between the companies Haribo and Lindt concerning the alleged infringement of the trademark “Goldbären” (“golden bears”) by distributing a chocolate figure wrapped in a golden foil called “Lindt Teddy” and has denied an infringement with the following reasoning:
“If there is to be considered - as in the case in dispute – the question of infringement of a mark designation by a three-dimensional product design, the similarity of the designation cannot result from a similarity in a sound or a picture of the designation but only from a similarity resulting from the associative meaning. Only the mark designation and the attacked product design have to be compared. The form of the plaintiff´s products, in this case, the well known gummy bear of the plaintiff which is used under the mark designation, however, must not be considered. A similarity in the associative meaning requires that the mark designation in the view of the respective consumer is the obvious, easy and exhaustive denomination of the three-dimensional product design. Hereto accepting similarity of the signs has strong requirements because otherwise there would be the danger that under the aspect of similarity in the associative meaning of a mark designation with a three-dimensional product design, a far-reaching monopolization of product designs would be possible which could not be achieved on the basis of a collimation mark or a three-dimensional mark which defines and only protects a specific form of a product. It is not sufficient that the designation mark is only one under several obvious denominations of the product design. In this specific case, there is no similarity in the associative meaning. For the denomination of the Lindt-products, not only the words “Goldbären” (“golden bears”)” or “Goldbär” (“golden bear”) are possible. To the same extent, different denominations are obvious like “Teddy”, “Schokoladen-Bär” (“chocolate-bear”) or “Schokoladen-Teddy” (“chocolate-teddy”). The District Court has found a trademark infringement of the defendant. By rejecting the action, the German Federal Supreme Court has confirmed the rejection pronounced by the Higher Regional Court.