Gummy Bears Not So Sweet in Trade Mark Dispute

A German sweet company, Mederer GmbH (the Applicant), has failed in its appeal against trade mark opposition proceedings brought by Cadbury to invalidate its trade mark registration for 'Gummi Bear Rings'. A copy of the Court judgment which helpfully includes representations of the respective marks can be found here.

In April 2010 the Applicant obtained a European figurative trade mark registration for its 'Gummi Bear Rings' phrase together with a cartoon picture of a young boy with gummi bear rings on his fingers. The mark was registered in Class 30, for confectionary. In July 2011 an opposition to this mark was filed by Cadbury. The opposition was based on an earlier figurative trade mark that Cadbury had registered in Spain in Class 30 for the word 'Gummy'. This mark is stylised in black and white cartoon style bubble writing. The goods which both companies traded under the marks were identical.

In November 2012 the opposition was upheld at first instance. The Opposition Division of the Office for Harmonisation in the Internal Market decided that Cadbury had shown evidence of genuine use of their earlier mark and felt that there was a likelihood of confusion between the two marks. Following this decision the Applicant filed a notice of appeal contesting the Opposition Division's assessment of the likelihood of confusion. This appeal has now been dismissed by the General Court of the European Union.

The General Court held that the signs were similar based on both their visual and phonetic similarities; of particular note was the presence of the words 'Gummy' and 'Gummi' in the respective marks. The Court stated it was likely that the relevant public (the standard by which these issues are measured) would identify that the 'Gummi' element of the Applicant's mark would be a company identifier, with the 'Bear Rings' section designating the content. The General Court therefore held that despite the comparative lack of visual similarity of the signs there was a risk of confusion between the two signs and therefore dismissed the Applicant's appeal.

If this case raises any issues that you would like to discuss in more detail please do not hesitate to contact the team at McDaniel and Co. on 0191 281 4000 or by email to legal@mcdanielslaw.com.