Tribunal grants Nestlé's request for preliminary injunction against Unilever

The Community Design Tribunal has granted a preliminary injunction against Unilever Spain on the grounds that the latter had marketed a food product in a packaging that was similar to that used by Nestlé Spain. By way of precautionary measures, the court ordered that:

• Unilever cease all acts of trade involving the product at issue;
• Unilever cease advertising the product;
• Unilever withdraw the product from the market, as well as all related promotional material; and
• all stocks of the product be retained and stored.

The background of the case was as follows.

On December 22 2010 Nestlé requested precautionary measures against Unilever, considering that the packaging of a product sold by Unilever adversely affected its rights.

The Community Design Court Number 2 of Alicante, in an order dated May 3 2011, concluded that the request for precautionary measures did not meet the relevant requirements and dismissed Nestlé's petition.

Nestlé appealed to the Community Design Tribunal. In an order dated March 30 2012, the tribunal upheld Nestlé's appeal and granted an interim injunction. After examining the packaging of the parties’ products, the tribunal agreed with Nestlé that there was a risk of confusion under Article 6 of the Unfair Competition Act. It considered that there were enough similarities between the products’ packaging to prevent an average consumer from differentiating between the products and their commercial origin.  

Further, the Community Design Tribunal highlighted the defendant's unfair conduct by pointing out that Unilever had introduced into the market a product that was identical to Nestlé's, which was a pioneer in the commercialisation of this type of food product. The similar packaging used by Unilever could lead to consumer confusion, regardless of the fact that the products bore well-known marks: MAGGI for Nestlé's product and KNORR for Unilever's.

Additionally, the tribunal noted that Unilever had placed the words ‘new recipe’ on the packaging of its product, even though it had never sold a similar product in the past. This would lead to a risk of confusion to the point that consumers could be unsure as to which product they had previously purchased. The tribunal also took into account the fact that other competitors had launched identical food products using a packaging that was completely different from that used by Nestlé.

Jose Antonio Pontijas, Grau & Angulo, Madrid