Facts
Mars Schweiz AG (the appellant) is a joint-stock company headquartered in Baar, which distributes food products and in particular the chocolate snack "MALTESERS". Nestlé Schweiz AG (the respondent) is a joint-stock company headquartered in Vevey, which also manufactures and distributes a variety of goods, including the product "KIT KAT POP CHOC".
The Commercial Court of the Canton of Aargau dismissed the lawsuit filed by Mars Schweiz AG, in which it sought to prohibit Nestlé Schweiz AG, under threat of penalties pursuant to Art. 292 of the Swiss Criminal Code, from placing the product "KIT KAT POP CHOC" on the Swiss market in a specific packaging design. Mars Schweiz AG then filed a civil law appeal with the Federal Supreme Court.
Considerations
The Federal Supreme Court dismisses the appeal. It considers that while the packaging of the "MALTESERS" products has inherent distinctiveness, there is no risk of confusion with the packaging of the competing product "KIT KAT POP CHOC". The Federal Supreme Court also finds that there is no unfair imitation or exploitation of reputation.
In its reasoning, the Federal Supreme Court states that the word marks "MALTESERS" and "KIT KAT POP CHOC" are clearly designed differently as the main elements shaping the overall impression. The other design elements such as color scheme, product presentation, and packaging form also contribute to the clearly distinguishable overall impression of the…