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Nespresso, encapsulated

The shape of the famous capsules is no valid 3D trademark.

Nespresso, encapsulated

The Swiss Federal Supreme Court recently ruled that the shape of the famous Nespresso capsules cannot constitute a valid 3D trademark.

Nestlé was the owner of a 3D trademark relating to the shape of Nespresso capsules. Nestlé therefore tried to prohibit Ethical Coffee Company from selling biodegradable coffee capsules that are compatible with Nespresso coffee machines. In response, Ethical Coffee Company argued that Nestlé’s 3D mark was invalid because the shape of Nespresso capsules constitutes a technical necessity. The legal question at hand is therefore: is the shape of Nespresso capsules necessary to achieve a technical result? If so, this shape cannot constitute a valid trademark. The reason for this is that protecting technological innovations is the function of patent law, not trademark law.


Protecting technological innovations is the function of patent law, not trademark law.

To answer this question, the Swiss Supreme Court assessed whether there are any alternative shapes that are able to achieve the same technical result. These alternative solutions must be equivalent in the sense that they do not have any disadvantages, and they must not lead to higher manufacturing costs. The Court found that no equivalent alternative shapes are available, referring to various disadvantages such as the smaller amount of coffee per capsule and the higher chance of the coffee machine malfunctioning, as well as the higher manufacturing costs of these alternative capsules. Therefore, the Court invalidated Nestlé’s 3D mark.

Earlier shape marks that were previously annulled for the same reason include the Rubik’s cube and Lego toy bricks. These decisions all touch upon a very important issue, as it is crucial that the boundaries between trademark law and patent law are established clearly. After all, trademarks can last forever, while patent protection is limited to a period of 20 years. Trademark law should not be misused to protect technological innovations after the patent protection term has ended.