Facts
Masterfoods AG (respondent) is the owner of the word and figurative trademarks "Maltesers" and distributes chocolate balls in a specific packaging design. Nestlé Schweiz AG (appellant) planned to distribute a similar product called "Kit Kat Pop Choc" in packaging that, in Masterfoods AG's view, posed a risk of confusion with its design. The Commercial Court of the Canton of Aargau subsequently issued an interim measure prohibiting Nestlé Schweiz AG from distributing this product in the contested packaging. Nestlé Schweiz AG filed a constitutional appeal against this decision with the Federal Supreme Court. The Federal Supreme Court dismissed the appeal and confirmed the interim measure of the Commercial Court.Considerations
The Federal Supreme Court stated that the Vice President of the Commercial Court had rightly considered a likelihood of indirect confusion between the packaging of the two products to be credible. In doing so, he took into account that the product packaging was largely…