Facts
Société des Produits Nestlé SA and Nestlé Nespresso SA (the appellants) are companies of the Nestlé Group. Nestlé Nespresso SA is responsible for the manufacture and distribution of Nespresso coffee capsules and is the market leader for portioned coffee in Switzerland. Société des Produits Nestlé SA is the owner of various trademarks, including a three-dimensional Swiss trademark for "café, extraits de café et préparation à base de café".
Denner AG (respondent 1) started offering coffee capsules manufactured by Alice Allison SA (respondent 2) as of December 15, 2010. The appellants then filed an application for interim measures with the Commercial Court of the Canton of St. Gallen, seeking a ban on the distribution of these coffee capsules and a ban on the use of certain advertising slogans.
The Commercial Court initially issued a super-provisional order imposing these bans. In its subsequent decision, it lifted the ban on the distribution of the coffee capsules but largely confirmed the ban on the use of the advertising slogans, although it allowed the indication "Compatible with Nespresso machines" in advertising and on the products or packaging.
The appellants appealed against this decision to the Federal Supreme Court.
Considerations
The Federal Supreme Court states that it is questionable whether the previous understanding of the irreparable harm within the meaning of Art. 93 para. 1 lit. a BGG can be maintained. The appellant must demonstrate in the appeal brief how a legally irreparable harm threatens them in the specific case.
The Federal Supreme Court considers it obviously untenable and a violation of the right to…