Beary Serious Infringement Issues
College students in Spain created a start-up planning to sell alcohol-infused gummy bears, naming their company Osito & Co., meaning “bears with alcohol.” They believed they had an original idea with the gummies having “15-percent alcohol—meaning it takes about 15 bears to equal one drink like a glass of wine.”[1] The college students of Osito & Co. created these gummies in a variety of flavors including vodka with orange, whiskey and coke, rum and pineapple, gin and strawberry.[2]
Osito was only up and running for three months when they received a cease and desist letter from the German candy giant Haribo. Haribo noticed the Osito sweets and claimed that the bear is so similar to the Haribo one that its bear shape is in range of infringement of its trademark.[3] The letter from Haribo not only demanded that Osito immediately halt manufacturing of their boozy bears, it also demanded Osito transfer the management and ownership of the ositosconalcohol.com domain name to Haribo.[4]
The CEO of Osito, 24-year-old Ander Méndez was surprised and confused by the Haribo letter. He founded Osito with two of his university friends, fellow engineer Julen Justa, 25, and Tamar Gigolashvili, a 24-year-old law and management graduate.[5] Méndez explains that “not only were Osito & Co.’s bears bigger and a different shape, they were also sold only online or in places where alcohol was served and were clearly marked as products for people aged 18 or older.”[6] The dispute hinges on the bear shape. Haribo claims that this is their “standard legal procedure” that is taken in order to protect their legal trademarks, although Haribo has no intention of creating alcohol infused bears.[7]
This is not the first bear dispute Haribo has brought claiming infringement of the use of their bear shape by another candy company. In 2012, Haribo brought Swiss chocolate giant, Lindt to court over Lindt’s introduction of the gold foil wrapped chocolate bears in the 2011 Christmas season.[8] Lindt argued that these chocolate gold bears were a variation on their already popular Easter chocolate gold rabbits.[9] The initial suit in a German court ruled in favor of Haribo and banned future sales of Lindt bear-shaped chocolates in December 2012.[10] However, this decision was subsequently thrown out at the court of appeals level and later by Germany’s federal court which articulated that the two products could not be confused with each other.[11] The court decided in favor of Lindt and claimed that “Lindt’s sale of bear-shaped chocolates wrapped in a golden foil with a red ribbon is neither a violation of Haribo’s ‘Gold Bear’ trademark nor an illegal imitation of the fruit gum products.”[12] Lindt is able to continue to produce chocolate bears without infringing the Haribo gummy bear trademark.[13]
As for Osito, Méndez and the founders of Osito have taken on the help of a lawyer to assist with Haribo’s letter. They plan to keep marketing Osito and continue selling their alcohol infused candies in Spain and to customers in the U.K. and France.
Footnotes
