Decision on Unfair Competition by Imitation of Product Presentation

Facts

Beiersdorf AG, the manufacturer of cosmetic products under the NIVEA brand, filed a lawsuit against the Migros Bern cooperative, which markets products in the same category under the JANA brand. Beiersdorf AG alleged that Migros Bern had imitated the appearance of its products, constituting an act of unfair competition. The Commercial Court of the Canton of Bern dismissed the claim, and the Federal Supreme Court upheld this judgment.

Considerations

The Federal Supreme Court considered that, although Migros Bern had consciously brought the appearance of its products closer to those of Beiersdorf AG, there was no risk of confusion within the meaning of Art. 3 let. d UCA. Indeed, the shapes of the bottles, the brands, and the colors used present sufficient differences to exclude any risk of confusion for the average consumer. Furthermore, the use of common colors and the aesthetics of the bottles cannot be considered acts of unfair…