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Nespresso capsules cannot be protected, says highest Swiss court

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The shape of the Nespresso coffee capsules is ordinary and unmemorable, according to Switzerland’s highest court, reported RTS.

In Switzerland, inventions are protected for 20 years. After that they become part of the public domain and can be copied by anyone. Trademarked brands on the other hand last for 10 years with the possibility of perpetual renewal.

Trademarking the shape of the Nespresso capsule was Nestlé’s way to restrict competition beyond the 1996 expiry date of the product’s patent, something Nestlé pursued in 2000. Initially, the Swiss Federal Institute of Intellectual Property (IPI) rejected the idea before relenting.

In 2011, Nestlé tried to use its shape-based trademark to see off a competitor, Ethical Coffee, that was selling similarly shaped capsules in France and Switzerland. However, the Vaud the cantonal court that Nestlé used to defend its trademark ruled against the company.

Nestlé then appealed to the Federal Tribunal, Switzerland’s highest court. This week the Federal Tribunal also rejected the case on the grounds that the shape of the capsule is ordinary, unmemorable and therefore belongs in the public domain where it can be copied by competitors. The court based its decision on a survey that found only 33% of the survey group was able to identify the Nespresso brand based on photos of the capsules.

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