Nestlé filed its complaint on 6 January, and the Commercial Court of St. Gall handed down the injunction on 10 January 2011, which is probably a lot quicker than Denner would have hoped. The Court held that the shape of the Nespresso capsule mark (above) was not purely determined by technical considerations ("technisch notwendig"). Nestlé argued that even capsules compatible with the Nespresso machines did not have to have the trade marked shape (unfortunately, the exhibit 25 filed in support of this claim is not public), and the court apparently found this convincing. Nestlé also showed that more than 50% of the Swiss general public associate the trade marked shape (unsupported) with Nespresso (supported recall 73%).

Interestingly, Nestlé also filed a survey, conducted on 5 January 2011 (that was quick) that showed that 50% of the public associates the infringing capsule with Nestlé - which is really a confusion survey, and so far, the general consensus has been that these are inadmissible, as likelihood of confusion is a legal concept. Personally, I think it's a clever bit of lawyering. It probably was not all that clever by Denner, on the other hand, to literally translate Nestlé's registered word mark WHAT ELSE into Swiss-German ("Was susch?"). The court had no trouble finding Nestlé's mark infringed.

Decision of 10 January 2011(in German) - NOTE that this is an EX PARTE injunction, so this fight is by no means over.