Nestle, however, took all the precautionary steps in protecting her interests. The shape of her capsules had been protected as a shape mark. During interlocutory procedures the court decided that Denner’s product was an infringement on Nestle’s trademark rights.
The shape of the capsule was not determined entirely by its technical application. Although the two capsules were not identical up to 50 % of the consumers associated Denner’s capsules with Nestle. As a result Denner was prohibited to sell her coffee cups.