Korean IP High Court Confirms Narrow Scope of Protection for 3D Confectionery Trademark
▒ Introduction
On May 28, 2026, the Korean Intellectual Property High Court issued an important decision concerning the scope of protection for three-dimensional product-shape trademarks.
In IP High Court Case No. 2025Heo10583, the court dismissed an appeal filed by RiGO Trading S.A. (“RiGO”), the owner of a registered 3D trademark for a bear-shaped gummy, and upheld the earlier decision of the Korean Intellectual Property Trial and Appeal Board (IPTAB), which had rejected RiGO’s positive scope confirmation claim against Nestlé Korea LLC (“Nestlé Korea”).
The decision is significant because it confirms that even where a product-shape trademark has been registered based on acquired distinctiveness, the owner cannot monopolize the general idea of a bear-shaped gummy. Protection remains limited to the specific expressive features of the registered 3D mark.
This case is part of a broader series of Korean disputes concerning the enforceability of 3D bear-shaped gummy trademarks, and it provides further guidance on how Korean courts assess trademark use, product-shape similarity, and market context.
▒ Case Background
The registered trademark at issue was Korean Trademark Registration No. 1183782, a 3D mark representing the shape of a bear-shaped jelly, registered in Class 30 for “confectionery.” The mark was registered on the basis of acquired distinctiveness under Article 33(2) of the Korean Trademark Act.
RiGO filed a positive scope confirmation action before the IPTAB (Case No. 2023Dang886), arguing that the bear-shaped gummy used in Nestlé Korea’s FRUTIPS Mallang product fell within the scope of RiGO’s registered 3D trademark. The trademark and product in question are as follows:
RiGO’s 3D Trademark
Nestlé Korea’s Product
(For reference, a scope confirmation trial is an inter-partes administrative action that determines whether the use of a specific mark on specific goods falls within the scope of — and thus potentially infringes — a registered trademark. In this case, the claimant was seeking positive confirmation that the respondent had infringed their registered 3D trademark. Decisions in scope confirmation trials are often used to support a claim of infringement in a parallel civil damages suit.)
Nestlé Korea responded that:
1. the challenged bear-shaped gummy was used only as a product design, not as a trademark;
2. the challenged shape was not similar to the registered 3D mark; and
3. in any event, the shape fell within the statutory limitations on trademark rights under Article 90(1)(ii) and (iii) of the Korean Trademark Act.
On September 25, 2025, the IPTAB dismissed RiGO’s claim, finding that the challenged shape was not similar to the registered 3D mark and therefore did not fall within its scope. RiGO appealed to the IP High Court. The court rejected the appeal and upheld the IPTAB decision.
Court’s Key Findings
1. Challenged Shape Was Not Used as a Trademark
The court first considered whether Nestlé Korea’s bear-shaped gummy was used as a trademark at all. Under Korean trademark law, a sign must be used as a source identifier in order to fall within the scope of a registered trademark. Even if a product shape resembles a registered trademark, there is no trademark use if the shape is perceived merely as the product’s form or design.
The court found that Nestlé Korea sold the relevant product under packaging clearly bearing the mark FRUTIPS 프루팁스 말랑 [FRUTIPS Mallang in Korean]. The bear-shaped gummy was only one of the shapes contained in the product line, alongside fruit-shaped gummies such as strawberries, blueberries and other fruit forms. The court also noted that the product description referred to the gummy as a soft, round bear-shaped jelly. In the court’s view, this indicated that the shape was being used to describe the product’s form and appearance, rather than to identify commercial origin.
Importantly, the court placed weight on the market environment. Various bear-shaped gummy products had already been sold in Korea by different companies under different brand names, including No Brand, Albanese, Trolli, Bebeto and others.
Although the court acknowledged that HARIBO’s bear-shaped gummies appeared to have achieved a certain degree of recognition among Korean consumers, it held that this did not mean consumers would perceive bear-shaped gummies in general as originating from HARIBO or RiGO.
2. Registered 3D Trademark Cannot Cover the General Motif of a Bear-Shaped Gummy
The court then addressed similarity. Both the registered mark and the challenged shape depicted a bear facing forward, with two ears, a protruding nose, short arms and legs, and arms extending from the middle of the body. However, the court emphasized that the scope of a 3D trademark must be limited to the specific expressive features of the registered shape. It cannot extend to the general motif or concept of a “bear-shaped gummy.”
The court made clear that the claimant could not rely merely on the fact that both products were bear-shaped. Instead, the comparison had to focus on the concrete visual expression of each shape.
3. Clear Visual Differences
The court identified several differences between the registered 3D mark and the challenged gummy shape. In particular:
1. the registered mark had relatively pointed ears, nose, arms and legs, while the challenged shape had rounder features;
2. the registered mark showed a broadly smiling face, while the challenged shape had no mouth;
3. the registered mark depicted a bear standing upright, while the challenged shape appeared to be seated;
4. the registered mark appeared to have a thick outer contour, while the challenged shape had a clearer and more direct outline;
5. the registered mark had small moulded dot-like features on the belly, which were absent from the challenged shape;
6. the head-to-body proportions differed; and
7. the treatment of the eyes was different, with the registered mark having recessed-looking eyes and the challenged shape having rounder, protruding-looking eyes.
Based on these differences, the court concluded that ordinary consumers would be able to distinguish the two shapes and would not be confused as to source.
4. Generic Names and Concepts Are Not Enough
The court also considered the fact that both shapes could be called “bear-shaped jelly,” “bear jelly,” “gummy bear,” or similar names. However, it held that such generic names or concepts could not, by themselves, support a finding of similarity. The court reasoned that if two 3D product-shape marks were considered similar merely because they shared a common generic name or concept, the scope of trademark protection would become excessively broad and would unfairly restrict competitors’ freedom to use ordinary product shapes.
This reasoning is especially important in crowded product-shape markets. Where many sellers use similar product shapes, a trademark owner must show similarity in the specific expression of the registered shape, not merely similarity in the underlying product concept.
▒ Relationship with Earlier Bear-Shaped Gummy Cases
This decision forms part of a broader series of Korean disputes concerning RiGO’s 3D bear-shaped gummy registrations. Related proceedings have involved other bear-shaped gummy products, including those sold under brands such as Weeny Beeny, Bebeto and Trolli.
Although the specific target shapes differ from case to case, the recent decisions show a consistent analytical approach. Korean courts and tribunals have focused closely on whether the challenged shape is used as a trademark, whether the specific expressive features of the registered 3D mark are reproduced, and whether the relevant market is already crowded with similar product shapes.
In the Weeny Beeny case, the IP High Court had already taken a narrow view of the scope of protection for a 3D bear-shaped gummy mark, and the Korean Supreme Court later dismissed RiGO’s appeal. The current FRUTIPS decision extends that reasoning to another challenged bear-shaped gummy product and reinforces the principle that the general shape of a bear cannot be monopolized through trademark law.
▒ Comment
This decision is important for both trademark owners and their competitors.
For trademark owners, the case confirms that registration of a 3D product-shape mark, even on the basis of acquired distinctiveness, does not guarantee broad enforcement rights. To succeed, the owner must show that the challenged shape is used as a trademark and that it reproduces the specific expressive features of the registered mark. Evidence that the owner’s main brand is famous may not be enough. Where the relevant market contains many similar third-party product shapes, courts will carefully examine whether consumers perceive the shape itself as a source identifier, rather than merely as a familiar product form.
For competitors, the decision provides useful guidance. A registered 3D trademark does not necessarily prevent competitors from using the same general product motif, provided that their product shape is not used as a trademark and has sufficiently different visual features. More broadly, the case reflects a consistent judicial trend in Korea: product-shape trademarks are protectable, but their scope is narrow where the shape is common, decorative, or widely used in the relevant industry.
The judgment is particularly relevant for industries where product design and trademark protection overlap, including confectionery, food products, fashion accessories, toys, household goods and consumer products. The key takeaway is clear: in Korea, a 3D trademark may protect a specific product shape, but it does not give the owner a monopoly over the general product concept.
For further background on related Korean disputes involving 3D bear-shaped gummy trademarks, see the author’s earlier APAA e-Newsletter article, “Ongoing Dispute over the Scope of Protection for a 3D Bear-Shaped Trademark in South Korea”.
