The shape of Nestlé’s Nespresso coffee capsules has been branded “ordinary and unmemorable” by Switzerland’s highest court, meaning that the shape belongs in the public domain, and can be replicated by any competitor or entrepreneur without legal contest. 

Nestlé tried to use a trademark to fight off competition

Under Swiss law, patents are protected for 20 years, after which they become part of the public domain and can be replicated and reproduced by other firms. At the end of the 20 years, firms can apply to have their invention trademarked, which can then prevent it from entering the public domain for another 10 years, with the possibility of a (perpetual) renewal. 

In Nestlé’s case, the Nespresso capsule, which was created in Switzerland, had its original patent expire in 1996. Nestlé, one of the largest international companies in Switzerland, went on to request a trademark for 10 further years, which was initially denied by the Swiss Federal Institute of Intellectual Property (IPI), but then eventually approved in 2000. 

Swiss Federal Tribunal rejected Nestlé’s latest case

In 2011, Nestlé challenged a competitor in Switzerland and France, the now-closed "The Ethical Coffee Company", for selling similarly shaped capsules, in a court in Vaud. The court ruled in favour of The Ethical Coffee Company, and stated that Nespresso’s trademark did not prohibit the company from producing their product. 

Nestlé then appealed this ruling at Switzerland’s top court, the Federal Tribunal, which rejected the case on the grounds that the shape of the capsule is “ordinary, unmemorable and therefore belongs in the public domain.” The court based its decision on a study that found only one-third of those asked could identify the Nespresso brand based on photos of the capsule and its shape.