Facts
Company Y. AG (plaintiff) wishes to market a "Pelikan" garlic press in Switzerland, which it has been selling in Germany since September 2001. Before delivering the products to Switzerland, it was warned by company X. AG (defendant), which has held design no. 1 for a garlic press since 25 March 1998. The plaintiff then brought an action before the Cantonal Court of Lucerne to establish that the manufacture and marketing of its "Pelikan" garlic press do not infringe the defendant's rights in the registered design. The defendant filed a counterclaim seeking to prohibit the plaintiff from manufacturing and marketing the "Pelikan" garlic press.Considerations
The Cantonal Court granted the plaintiff's application and found that the "Pelikan" garlic press does not infringe the defendant's rights in the registered design. It considered that the comparison between the registered design and the plaintiff's press should be based on the current overall impression and not on the recipients' recollection. According to the Court, the plaintiff's "Pelikan" garlic press is sufficiently distinct from the "Allium Garlic Press" registered by the defendant.
The defendant appealed against this judgment. The DFC dismisses the appeal. It considers that the Cantonal Court correctly applied Art. 8 of the DesA to determine whether the plaintiff's garlic press creates the same overall impression as the design…