A happy world for Haribo following sweet victory over 'kinder'
week following a decision by the German court declaring there was
no copyright infringement in using the word 'kinder'.
Ferrero tried to claim it had the rights to the word 'kinder', mainly due to its trademark 'Kinder Surprise' and 'Kinder Bueno' products, and were attempting to prevent Haribo from producing confectionery products under the name 'Kinder Kram'. Ferrero also took another company, Zott, to court over the use of the word 'Kinderzeit' for the name of its new milk desert. Both cases were dismissed by the higher courts in Hamburg and Cologne, as well as the Federal Supreme court of Germany, Bundensgeruchtschof (BGH), and the word 'kinder' is now available for use by all manufacturers. In 2003, the Cologne court had suggested the Kinder Kram products from Haribo contained similarities in colour and mark to those of Ferrero's Kinder range, however this was overruled in the same court last week. "Der Bundesgerichtshof has now confirmed the decision of the Cologne court and dismissed the case," the German court said in a press release. "It confirmed that the mark 'Kinder Kram' did not violate the rights in the mark 'Kinder'. The word element 'Kinder' on its own did not enjoy trade mark protection per se according to the BGH due to its 'descriptive nature' in the eyes of the relevant consumer group." The BGH added that the packaging and logo marks between 'Kinder' and 'Kinder Kram' were different enough for there not to be a case. In the Zott case, Ferrero had attempted to get the court to ban the use of the mark in advertising and on packaging, however this attempt was also overruled in Hamburg. "The BGH confirmed this ruling and stated that there was no similarity between the design mark 'Kinder' and the word mark 'Kinderzeit'," the court added. "Of course we're happy, but the decision was to be expected," a Haribo spokesperson told The Guardian. "You can't protect generic words like kinde, auto or haus." However, Ferrero was reported to be fighting the decision due to its investment in the Kinder trademark. "We will continue to defend the name Kinder against imitations," a Ferrero spokesperson was quoted by the Guardian. "We will decide whether to take further steps, including going to the constitutional court."
