Friday, 24 January 2020

Alcoholic sweets: why a bear shape isn't a good idea

The Guardian carries this story today about a start-up business in Spain which has run into problems with a big trade mark owner. As with so many stories about intellectual property, we could call one party David and the other Goliath - in this instance the sweet-maker Haribo (a word which seems to be on the verge of entering the language as a generic term).

The idea of making the jelly-like sweets alcoholic is novel, though I would be a little surprised if it did not feature somewhere in the state of the art. The problem, though, is not with the nature of the product: the problem lies with its shape.

The sweets market is not one of which I have much familiarity (what I do know about Haribo products is that the contain gelatine, so cannot form part of my vegetarian diet - although the only time I have to refuse them is at feed stations in long-distance races). I am however familiar with the concept of Gummy Bears (Gummibär, in their native German), although I wouldn't without the prompting of The Guardian's article necessarily have associated them with Haribo. I would however have known enough to realise that bear-shaped sweets were likely to attract someone's unwelcome attention.

It's easy to present this as a David and Goliath situation, with a humourless, monopolisitic behemoth (and no, I'm not getting my bears and cats mixed up here) bullying young people who are only trying to get their own business up and running. The presence of alcohol in their sweets makes them a rather different proposition from Haribo's, of course, although a similarity and likelihood-of-confusion analysis might conclude that they are too close for comfort. (Student readers: Discuss.) But why on earth shape them like bears, when the animal kingdom offers so many other possibilities? Haribo's claim proceeds from the assumption (so it seems from the comments in the article) that it is no accident: perhaps there was no deliberate attempt to sell boozy bears by reference to Gummy Bears, but it is hard to believe that the newcomers could have been ignorant of what was already in the market (and should have done some market research to make sure) so the allusion to the Haribo product cannot have been entirely inadvertant. It has certainly succeeded in getting publicity that they would not otherwise have enjoyed.

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