Germans and the Polar bear trade marks

Birgit Clark

Some of you may recall the heartbreaking story of the little polar bear cub "Knut", who was born at the end of 2006. Knut had to be hand-reared by his keeper Thomas and became a celebrity after being rescued when his mother rejected him. The story seems to repeat itself at the Nuremberg zoo, where in January 2008 Germany's latest celebrity polar bear cub "Flocke" (snow flake) was taken from its mother amid concerns she could kill the newborn. The bear's keeper initially nicknamed the cub “Flocke”, which was also reported in the media. However, the bear was only officially named “Flocke” by the city of Nuremberg on 18 January 2008 after a “public consultation”.

The polar bear cub "madness" had an interesting effect on trade mark applications filed at the German Patent and Trade mark Office. A quick search for the respective names "Knut" and "Flocke" reveals that 23 trade mark application were filed relating to "Knut" from 1 January 2007 to 4 February 2008, and 14 applications relating to "Flocke". The first application to protect “Flocke” as a German trade mark was filed on 10 January 2008 in the name of a German lawyer. The city of Nuremberg filed its application on 16 January 2008, two days before going public with the result of the public name consultation.

As per today’s date, that is 26 February 2008, the number of Flocke applications on the German register has risen to 34 applications. It does not come as much of a surprise that it is not only the respective zoos in Berlin and Nuremberg that have filed applications, as this appears too good an opportunity to cash in on Germany's growing love for polar cubs.

The number of "Flocke" trade mark applications is only chapter one of the "Flocke" trade mark saga. Soon after the media started reporting on little "Flocke"’s fate the city of Nuremberg started providing information for interested licensees on special website and subsequently published a style guide on how to use the newly created Flocke Logo.

However, before long German newspapers reported that German crooner Patrick Lindner may have trade mark rights for "Flocke" and might "even earn millions of Euros due to his earlier [trade mark] rights". According to these reports, Lindner had already filed for trade mark protection for "Flocke" covering goods like sound carriers, sound recordings in 1994. A quick look at the German registry's official website revealed that German trade mark No. 2076997 Flocke in the name of LINK GmbH covering classes 09, 16, 41 and filed in 1994, had already been taken off the register on 8 April 2004 due to non renewal. Lindner's lawyer afterwards admitted that "... trade marks usually lapse, in cases where the renewal fees are not paid", something which may have been the case here, he conceded.

The story does not end here. Just a few days after the Lindner story was reported, there were more legal “Flocke” headlines. Fair Field, a sweets company from the Allgäu region had managed to file three trade mark applications for "Flocke" securing a filing date of 13 January 2008, that is three days earlier than the filing date of the Nuremberg zoo's trade marks. The city of Nuremberg was not impressed, particularly given that the sweets company had not only registered the name Flocke, but also Flocke the polar bear and Flocke the polar bear cub; it therefore stopped the sweets company via a preliminary injunction from marketing or selling any of their products under the "Flocke" trade mark. A spokesperson for the sweets company was quoted as saying "we liked the name a lot. It was pure instinct to file for trade mark protection".

The sweets company also claimed to have planned to develop various products to be marketed under the trade mark "Flocke". A spokesperson for the city of Nuremberg on the other hand was quoted to have said that it was “odd” that Fair Field would file for trade mark protection for “Flocke the polar bear” given the company’s main product was a herbal lozenge and it had “never had anything to do with polar bears.” German Franken TV reports that a decision in the Flocke trade mark case is expected for 7 March 2008. It appears that the Nuremberg court (Landgericht Nürnberg-Fürth), which is the court responsible for the case, has so far upheld the interim injunction but that the court and has also indicated Fair Field may have applied for the “Flocke” trade mark in a purely "speculative manner", pre-empting an application by the City of Nuremberg. It was also reported that the judge in the case has urged the parties to consider an out of court settlement.

Furthermore, the Telegraph reports that the German toy manufacturer Steiff is also planning to launch a Flocke range in May, despite the fact that it already markets a Steiff bear under the name "Knut". A spokesperson for Steiff is quoted as saying that “You’ll be able to tell that she’s a girl". It appears that Steiff has also filed for a “Flocke” community trade mark.

Given that “Flocke” marketing and licensing, whether moderate or not, will be worth millions of Euros, I would predict that the “Flocke” saga is far from over. More details and updates on the "Flocke" case can be found on Class 46.

PS: It is not only the Germans that love bear cubs, the Austrian Broadcasting Corporation ORF recently reported of a "trade mark fight" over baby Panda Fu Long (Lucky Dragon), which was born at Vienna Schönbrunn Zoo's 5 months ago.