Facts
The [X. AG] and the [Y.] & Co. AG as well as the [Z.] Holding AG concluded a court settlement before the Commercial Court of the Canton of Bern on 14 December 2010. This settlement provided, among other things, that the [X. AG] was to maintain its market appearance and supplement it with the addition '[X.] ' in a clearly legible manner and on a yellow background with black font. The [Y.] & Co. AG and the [Z.] Holding AG later requested enforcement of this settlement, as they believed that the [X. AG] was not fulfilling its obligations. The High Court of the Canton of Bern upheld the appeal by the [Y.] & Co. AG and the [Z.] Holding AG and ordered that the [X. AG] was to fulfill paragraph 3 of the settlement by no later than 31 May 2012.
The [X. AG] applied to the Federal Court to overturn the judgment of the High Court of the Canton of Bern and to reject the enforcement request. It argued that the lower court had interpreted the enforceable paragraph 3 of the settlement and had impermissibly narrowed the open formulation used therein. It also argued that the regulatory content of paragraph 3 of the settlement was not enforceable due to a lack of 'practicality'.
Considerations
The Federal Court examined the appeal and came to the conclusion that the lower court had not interpreted the enforceable paragraph 3 of the settlement, but had instead referred to it in its entirety and ordered that it be fulfilled by no later than 31 May 2012. The court found that the lower court had thus enforced the obligation agreed upon in the settlement to maintain the market appearance and to supplement it with the addition '[X.] ' in a clearly legible manner and on a yellow background with black font, without any interpretation whatsoever.
The Federal Court also rejected the complaint by the [X. AG] that the regulatory content of paragraph 3 of the settlement was not enforceable due to a…