Haribo is preparing for the transition to the sectors of clothing, accessories, as well as bags and backpacks. The most famous gummy bear of all time, created by the German company in 1978 and by now an iconic product, seems to be ready to make “the leap” to becoming a genuine trademark, with the blessing of the EUIPO (European Intellectual Property Office).
At the close of 2023, in fact, the EUIPO Board of Appeal (BOA) with decision R 872/2023-4 recognised the distinctiveness of the sign representing the gummy bear Haribo, annulling the examiner’s earlier decision that had instead found it to be “devoid of distinctive features”.
The Haribo case
Rigo Trading S.A. (Holding Company of the Haribo Group) sought to extend to the EU its international registration n. 1660878 beyond the confectionery sector. The mark, a two-dimensional outline of the gummy bear, designated in particular articles of clothing, mirrors, jewellery, hair pins, umbrellas, bags and backpacks.
The attempt did not find favour with the EUIPO examiner, who, on the contrary, rejected the application, arguing that the trademark in question lacked “distinctive character” that is the fundamental pillar for registering a trademark. According to the examiner, in fact, the stylised shape of a bear (on a t-shirt as well as on a backpack) would have been considered more as a mere decoration, and therefore could not have had the necessary “recognisability” on the market to constitute a trademark.
The Queen of sweets therefore decided to appeal this decision before the BOA, claiming the uniqueness of the sign depicting the profile of the gummy bear, which it considered immediately distinguishable from the signs of its competitors.
That is why, according to Haribo, such a mark applied to products, such as jackets, bags or other accessories, would certainly be perceived by the public as a “Haribo” trademark, and not as a “common” decoration.
The BOA’s decision
The BOA accepted Haribo’s arguments, basically agreeing that the teddy bear did indeed have distinctiveness.
In fact, the sign in question could not be perceived by the average consumer as a “product shape”, given the fact that this trademark was not applied for in the confectionery sector, but for goods in entirely different sectors.
It is also impossible, according to the new BOA, for the teddy bear to be perceived by the consumer as “mere decoration”, as its features are easily distinguishable and recognisable.
Thus, as a result of the BOA’s decision, finally on November 28, 2023 the extension to the EU of the international registration was accepted.