{"id":137406,"date":"2026-04-08T12:45:19","date_gmt":"2026-04-08T12:45:19","guid":{"rendered":"https:\/\/my.legal500.com\/guides\/?post_type=comparative_guide&#038;p=137406"},"modified":"2026-04-08T12:45:19","modified_gmt":"2026-04-08T12:45:19","slug":"switzerland-trademark-disputes","status":"publish","type":"comparative_guide","link":"https:\/\/my.legal500.com\/guides\/chapter\/switzerland-trademark-disputes\/","title":{"rendered":"Switzerland: Trademark Disputes"},"content":{"rendered":"","protected":false},"template":"","class_list":["post-137406","comparative_guide","type-comparative_guide","status-publish","hentry","guides-trademark-disputes","jurisdictions-switzerland"],"acf":[],"appp":{"post_list":{"below_title":"<div class=\"guide-author-details\"><span class=\"guide-author\">CMS von Erlach Partners Ltd.<\/span><span class=\"guide-author-logo\"><img src=\"https:\/\/my.legal500.com\/guides\/wp-content\/uploads\/sites\/1\/2019\/07\/Logo-CMS-Monaco.png\"\/><\/span><\/div>"},"post_detail":{"above_title":"<div class=\"guide-author-details\"><span class=\"guide-author\">CMS von Erlach Partners Ltd.<\/span><span class=\"guide-author-logo\"><img src=\"https:\/\/my.legal500.com\/guides\/wp-content\/uploads\/sites\/1\/2019\/07\/Logo-CMS-Monaco.png\"\/><\/span><\/div>","below_title":"<span class=\"guide-intro\">This country specific Q&amp;A provides an overview of Trademark Disputes laws and regulations applicable in Switzerland<\/span><div class=\"guide-content\"><div class=\"filter\">\r\n\r\n\t\t\t\t<input type=\"text\" placeholder=\"Search questions and answers...\" class=\"filter-container__search-field\">\r\n\t\t\t<\/div>\r\n\r\n\t\t\t\r\n\r\n\r\n\t\t\t<ol class=\"custom-counter\">\r\n\r\n\t\t\t\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">To represent a client before Court in respect of a potential trademark infringement matter, do you require a Power of Attorney \u2013 and if so, what are the execution formalities required by your courts?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Yes, to represent a client before Court in trademark infringement matters a Power of Attorney is necessary. A signature is sufficient. No notarisation or legalisation is required.<\/p>\n<p>According to Article 14 (2<sup>bis<\/sup>) of the Swiss Code of Obligations (CO), a qualified electronic signature combined with a qualified timestamp is legally equivalent to a handwritten signature. However, only a limited number of electronic signatures are currently accepted as qualified electronic signatures in Switzerland. Especially, DocuSign is not among them.<\/p>\n<p>To be on the safe side, a handwritten signature or a Swiss qualified electronic signature of the Power of Attorney is recommended.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Is it a requirement in your jurisdiction to send a cease and desist letter to a potential infringer before commencing proceedings for infringement? What are the consequences for a trademark owner who chooses not to send a pre-action letter?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>No, sending a cease and desist letter before commencing infringement proceedings is not required.<\/p>\n<p>However, not having sent a cease and desist letter may have an influence on the allocation of the court costs and party compensation. For example, in trademark opposition matters before the Swiss Trademark Office if the opponent has sent a timely warning to the applicant requesting the cancellation of the trademark, the applicant, who only cancels the trademark after the objection has been filed, has unnecessarily caused the opposition proceedings through their behaviour and must therefore bear the opposition fee and pay the opposing party a compensation.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">In your jurisdiction, is there a risk that a pre-action letter could give rise to claim against the trademark owner for unjustified threats? What steps should a trademark owner take to ensure any cease and desist letter does not expose the trademark owner to any liability.<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>A pre-action letter must not violate any provision of the Swiss Unfair Competition Act (UCA) or the Swiss Criminal Code (SCC). Especially, it must not be misleading or otherwise violate the principle of good faith. In addition, if a cease and desist letter is for example overly aggressive or legally completely unfounded, there is a risk that it may be regarded as unjustified. Under such circumstances, it could potentially also fulfil the statutory elements of coercion (Article 181 SCC). Having said this, the threshold for any liability of the trademark owner is high.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Is it mandatory for the parties to have attempted mediation or other alternative dispute resolution proceedings prior to commencing infringement proceedings? If so, what is the minimum expectation?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>No, in Switzerland no mandatory obligation exists to attempt any form of dispute resolution prior to commencing trademark infringement proceedings.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Are claims for trademark infringements heard before a general commercial Court or a specialist Court focused on Intellectual Property disputes? Are trademark infringement claims decided by a judge or by a jury?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>With the exception of patent infringement matters where a specialised Federal Patent Court exists, Switzerland does not feature a specialised Court for Intellectual Property disputes. Namely, trademark infringement matters are \u2013 depending on the canton \u2013 either heard before a general Commercial Court or the Court that the civil procedure act of the respective canton designates for Intellectual Property matters.<\/p>\n<p>Swiss procedural law does not allow for juries. Therefore, in Switzerland, trademark infringement cases are decided by a judge or a panel of judges, depending on the procedure.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Is there a time limit for commencing trademark infringement proceedings once the facts giving rise to the infringement are known to the trademark owner. After how long would such a claim be time-barred? What action would a trade mark owner have to know to give rise to such a claim being time-barred (for example, is it knowing that a mark in question is in use or is it knowing that a trade mark application has been filed and\/or registered?)<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>There is no fixed time limit for commencing trademark infringement proceedings. Especially, Swiss trademark law does not have an explicit regulation for the forfeiture of trademark rights, as exists in EU law, for example. Nevertheless, forfeiture can occur under Swiss law based on the prohibition of abuse of rights according to Article 2 (2) Swiss Civil Code (CC). The conditions are:<\/p>\n<p>i. failure of the trademark owner to act in the face of an infringement of his rights,<\/p>\n<p>ii. despite the trademark owner being aware of the infringing use, or despite such use being at least recognisable,<\/p>\n<p>iii. the infringer must have built up an ownership interest worthy of protection through the use of the trademark, and<\/p>\n<p>iv. the infringer must not be acting in bad faith and must in good faith rely on the fact that the trademark owner will not assert any claims.<\/p>\n<p>Swiss law does not recognise a fixed forfeiture period as is the case under EU law (five-year period). The period leading up to forfeiture is variable and depends on the circumstances of the individual case but is usually more than 10 years.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">In your jurisdiction does the law protect unregistered trademarks of any kind, including by way of passing off, unfair competition or protection of trade dress. What are the criteria for their subsistence?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>The Swiss Trademark Protection Act (TmPA) protects registered trademarks and unregistered trademarks that are well known in Switzerland within the meaning of Article 6<sup>bis<\/sup>\u00a0of the Paris Convention.<\/p>\n<p>In addition, Article 3 (1) (d) UCA may provide a basis for protecting certain unregistered signs, although it is not specifically designed for trademark protection. Relevant factors include whether the sign has an individualizing market presence, meaning it serves a distinguishing and identifying function that sets it apart from competitors. Additionally, the sign should be legally protectable, i.e. it must not be illegal, immoral, or in the public domain. A legitimate market position is also typically required, which may be lacking if the sign has not been used for a significant period. Further, prior use in Switzerland is often considered an important factor, requiring proof that the sign has been in commercial use in the Swiss market.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">In your jurisdiction will the Court hear claims for registered trademark infringement in parallel with claims for passing off,unfair competition, infringement of trade dress or other misleading advertising, or does a claimant need to bring such claims in a separate cause of action?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Provided that the subject-matter jurisdiction and local jurisdiction lie with the same Court, Swiss courts will hear claims based on different laws together. Because Switzerland does not feature a specialised Court for Trademark disputes, a Court will hear claims for registered trademark infringement in parallel with claims for unfair competition. As a matter of fact, claims for trademark infringement are often brought before the Court together with claims for violation of unfair competition law in Switzerland.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">In your jurisdiction, do your Courts share jurisdiction with your Trade Mark Office, such that parties need to seek to seize the forum they prefer first in time, or does the Court take precedence and intervene to stay or transfer any live Registry proceedings (for example relating to invalidity or revocation of registered trade mark) which may overlap with an issued infringement claim and related counterclaim?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>In Switzerland, trademark opposition proceedings are administrative in nature and fall under the jurisdiction of the Swiss Trademark Office. These proceedings are distinct from civil Court actions, which address matters such as infringement or invalidity claims. The Swiss Trademark Office may suspend its proceedings if their outcome depends on the decision of another case or could be significantly influenced by it. For instance, if a civil nullity action is filed against the prior trademark, the Swiss Trademark Office may suspend the opposition or cancellation proceedings until the Court has rendered its decision.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Where the defendant has a counterclaim for invalidity or cancellation of the registered trademark being asserted against it (either on the basis of earlier rights or as a result of non-use by the trademark proprietor), does the counterclaim become part of the infringement action, so that both issues are heard by the same Court within a single action, with the Court making a determination at its conclusion, or are the validity issues bifurcated and heard in separate parallel proceedings? If in your jurisdiction validity issues are bifurcated, what are the practical consequences of this from a timing perspective? For example, does this mean that a Court will stay the infringement claim and proceed with the validity attack first to avoid finding a trademark infringed, only to have a separate Court find the trademark invalid at a later date?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Under Swiss civil procedure law, the counterclaim becomes part of the infringement action and both issues are heard by the same Court within a single procedure. The Court will rule on both, the claim and the counterclaim, in one decision.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">In your jurisdiction, does a defendant have a defence of using a mark honestly and concurrently available to them?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Swiss law does not know a defence of honest concurrent use as such. However, Art. 14 Swiss TmPA provides a restriction of the rights of the proprietor of a trademark in favour of a third party&#8217;s prior use of a mark. A person who has used a sign identical or similar to a registered trademark in Switzerland before the filing date or priority date of the trademark may continue to use it to the same extent as before. This right to continued use may only be assigned together with the undertaking.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">When considering the validity of a registered trade mark, does the Court consider whether the trade mark has been registered in bad faith? If so, what actions would indicate this bad faith?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Yes. Swiss law does not contain an explicit statutory provision on bad faith as a ground for trademark invalidity. However, a trademark registration may be challenged based on the general prohibition of abuse of rights under Article 2 (2) CC, which provides that the manifest abuse of a right is not protected by law. In addition, Article 2 UCA prohibits business practices that violate the principle of good faith in a manner that influence the relationship between competitors or between suppliers and customers. Actions indicating bad faith include e.g. filing a trademark without any legitimate interest of one&#8217;s own and filing primarily to block a competitor or to extort licensing fees. In addition, according to Article 4 TmPA trademarks registered in the name of agents, representatives or other authorised users without the consent of the proprietor, or trademarks which remain entered in the trademark register after the withdrawal of such consent, are not protected.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">If the main objective in commencing infringement proceedings is to secure an injunction, is a claimant required to state how much their claim is worth at the point their claim is issued?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Yes, in principle the claimant has to state how much their claim is worth when filing a claim with the Court. However, according to Article 85 (1) Civil Procedure Code (CPC), if it is impossible or unreasonable for the claimant to quantify their claim at the beginning of the proceedings, they may file an unquantified claim. However, they must indicate a minimum value, which is then deemed to be the provisional amount in dispute.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Is it possible to seek a preliminary injunction in your jurisdiction? If so, what is the criteria a trademark owner needs to establish and is there a bond or other undertaking in damages payable to compensate the defendant if the Court finds no infringement following a substantive hearing?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Yes, it is possible to seek a preliminary injunction in Switzerland. According to Article 261 (1) CPC the Court shall take the necessary provisional measures if the party seeking the measures establishes a prima facie case that (i) a right belonging to it has been or is about to be violated; and (ii) it faces a disadvantage that cannot easily be remedied as a result of the violation. In cases of particular urgency, especially where there is a risk of obstruction, the court may order the precautionary measure immediately and without hearing the other party (Article 265 CPC).<\/p>\n<p>If there is a risk of damage to the other party, the Court may make the ordering of preliminary injunction dependent on the provision of security (Article 374 (3) CPC).<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Is a licensee (whether exclusive or non-exclusive) of a registered trademark entitled to commence proceedings for trademark infringement? Does the trademark proprietor need to be joined as a party to the proceedings, and does it have an effect whether the licensee is registered before the local Trademark Registry?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>According to Article 55 (4) TmPA a person who holds an exclusive licence is entitled to bring a separate action irrespective of the registration of the licence in the Register unless this is expressly excluded in the licence agreement. A non-exclusive licensee is only entitled to commence proceedings for trademark infringement if the licence agreement expressly grants him the corresponding right.<\/p>\n<p>All licensees may join an infringement action to claim their own damages.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Where the claim for trademark infringement is premised on similarity between the defendant\u2019s mark and the trademark owner\u2019s registered mark, does the proprietor need to demonstrate that confusion has occurred or simply that there is a risk of confusion? What is the minimum standard required to secure a finding of infringement?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Under Swiss trademark law, it is sufficient to prove a likelihood of confusion. The owner does not have to prove actual confusion. The question of whether two trademarks are confusingly similar is a legal question only.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">In your jurisdiction is it possible to rely on post-sale confusion as a means of securing a finding of trade mark infringement?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Swiss trademark law does not prescribe a specific point in time at which confusion must arise for an infringement to be established. The prevailing view in Swiss legal scholarship is that confusion occurring before, at, or after the point of sale can be relevant.<\/p>\n<p>Although the Federal Supreme Court has ruled that information of which the purchaser becomes aware only after purchase may be relevant to the likelihood of confusion under unfair competition law, there is no corresponding ruling in trademark law. Accordingly, this issue has not yet been fully resolved for trademark infringement in Swiss law.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">In your jurisdiction what type of disclosure or discovery is typically ordered by the Court in respect of trademark infringement actions from both parties?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>In Switzerland, the civil court does not order any disclosure or discovery. Namely, discovery is not a concept known in Swiss civil court proceedings. However, a party may request the production of specific documents (so-called Editionsbegehren) from the opposing party or a third party (Art. 160 (1) (b) CPC).<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">What type of expert evidence is permitted by the Court in your jurisdiction? Does the Court accept consumer surveys and are there specific rules about how consumer surveys are conducted. Do the parties need to request prior permission from the Court to adduce survey evidence?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Consumer surveys are permitted as evidence in trademark infringement proceedings in Switzerland and no prior permission form the Court is necessary. Swiss Courts regularly take public surveys into account if they have been carried out correctly. The consumer survey must be methodically correct (among others neutral questions and correct evaluation). It must concern the relevant public (e.g. general consumers or specialist circles) and results must not be distorted by leading questions or procedural errors.<\/p>\n<p>Consumers surveys are not a mandatory means of proof. However, they can serve as private expert opinions which are recognized as documentary evidence (Art. 168 (1) (d) in connection with Art. 177 CPC). This classification grants them formal evidentiary status.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Does evidence submitted by your client in trademark infringement proceedings have to be accompanied with a statement of truth or other similar declaration?  Which party is typically responsible for signing the statement of truth (or similar), the entity itself or the entity's representatives?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>No, under Swiss civil procedure law, the evidence submitted in trademark infringement proceedings do not have to be accompanied with a statement of truth or other similar declaration.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">In your jurisdiction is it possible for a claimant to seek summary judgment and\/or strike out of an infringement claim? What are the legal criteria for a Court to grant summary judgment?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>In Switzerland, there is no direct equivalent of the summary judgment as it exists in Anglo-American law. Namely, a judgment without any taking of evidence based solely on the facts of the case does not figure in Swiss law.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">How long does it typically take to reach judgment in a trademark infringement action from issue of the claim, through to first instance decision? What is the lower and upper range of legal costs for such an action?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>The time frame strongly depends on the complexity of the case but in ordinary civil proceedings it in general ranges from 12 to 36 months. In preliminary cases, the time frame also depends on the circumstances of the case. Ex parte injunctions may be rendered in a time frame of a couple of days, in clear cases even on the same day. Proceedings for preliminary injunctions where both parties are heard typically take less than a few months.<\/p>\n<p>Depending on the complexity of the case and the value in dispute, the total legal costs can range from CHF 10,000 to over CHF 100,000. These legal costs consist of court fees and party compensation awarded to the prevailing party. Both, the court fees and the party compensation must be covered by the losing party. The costs can be reduced considerably by settlement.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Following a first instance decision, is it possible for either party to appeal the decision? What are the grounds upon which an appeal can be lodged? Is it necessary to request permission to appeal, or are appeals automatically permissible? If either party file an appeal, is the enforcement of the first instance decision stayed pending the outcome of the appeal?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>In trademark infringement actions, it is possible to appeal the first instance decision to the Swiss Federal Supreme Court. The appeal grounds differ depending on whether the first instance proceedings are for provisional measures or an ordinary proceeding.<\/p>\n<p>In case of provisional measures, the grounds for appeals are limited to the violation of constitutional rights (Article 98 Federal Supreme Court Act, FSCA). For ordinary (main) proceedings, a broader range of appeal grounds is available. These include violations of federal law, including constitutional rights, as provided under Article 95 FSCA.<\/p>\n<p>It is not necessary to ask for permission to appeal. Appeals are automatically permissible, provided the legal requirements are met.<\/p>\n<p>The filing of an appeal does not automatically suspend the enforcement of the first instance decision unless the decision qualifies as a decision that directly alters a legal relationship (German: \u201cGestaltungsurteil\u201d) (Article 103 FSCA). In all other cases, the appellant must explicitly request suspensive effect, which the Court may grant at its discretion.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">If the parties have been involved in a dispute before the local Trademark Office, what relevance does this have on later infringement proceedings? For example where trademark owner (A) may have already sought to oppose the registration of a third party (B\u2019s) mark in proceedings before the local Trade Mark Office, is the trademark owner estopped from seeking invalidity of a registered trade mark where its opposition failed where the invalidity action is based on the same grounds as the unsuccessful opposition?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>The owner of a trademark registration who has been unsuccessful in an opposition before the Swiss Trademark Office is not precluded from bringing an infringement action before a civil court. There is no estoppel and no res iudicata. The reason is that even if both claims are based on the same grounds, the Swiss Trademark Office and the civil court have different discretionary powers. Consequently, civil courts are not bound by the decision of the Trademark Office.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">In your jurisdiction, does the Court consider both liability and quantum within the same proceeding, or will any damages be assessed after the Court has reached a decision on liability? How are damages for trademark infringement proceedings typically assessed in your jurisdiction?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>The Court decides on both liability and on the affirmative the amount of damage payment. Swiss courts are generally conservative in awarding high damages. According to Article 55 (2) TmPA actions brought under the Code of Obligations for damages, unjust enrichment and handing over of profits in accordance with the provisions concerning agency without authority remain reserved. To calculate the amount of unjust enrichment, the usual licence fee for the use of the infringed trademark can be taken into account (licence analogy).<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">In addition to an injunction and damages, what other remedies are available in your jurisdiction?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Any person who can prove a legal interest may request the determination whether a right or legal relationship under this law exists or does not exist (Article 52 TmPA). In addition, the claimant may instead of seeking a declaration of invalidity of the registered trademark request an order for transfer of the mark if the defendant has appropriated it. The claim becomes time-barred two years after publication of the registration (Article 53 TmPA).<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Following a decision on the merits, is the winner entitled to recover all or a portion of its legal costs incurred in bringing or defending the proceedings. If legal costs are recoverable, what is the procedure involved and how does the Court assess the level of legal costs which should be reimbursed by the losing party.<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Yes, the legal costs are \u2013 depending on the outcome of the proceedings \u2013 (partly) recoverable. The losing party must pay the prevailing party\u2019s legal fees (i.e. party compensation) and the court costs. If neither party wins outright, the costs are allocated according to the outcome of the case. These costs are typically determined based on official tariffs, which consider factors such as the amount in dispute and the complexity of the case. However, even if a party is entirely successful, the court may not reimburse the full legal fees incurred but only the amounts calculated according to these tariffs. It\u2019s important to note that actual legal fees often exceed the reimbursable amounts, requiring the successful party to bear the difference.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Once the Court has issued a judgment, how long typically does the losing party have to comply with the Court\u2019s judgment including any final injunction issued? What are the consequences for failing to comply and how would the winning party seek enforcement of its judgement.<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>The Swiss civil procedure law has no general statutory deadline applicable to all judgments. The injunction is typically effective immediately or within the deadline (as a rule 10 to 30 days) set by the Court and specified in the judgement itself. It is possible to combine the claim for an injunctive relief with Article 292 SCC. According to Article 292 SCC any person who fails to comply with an official judgement issued by the competent Court shall be liable to a fine.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\r\n<div class=\"word-count-hidden\" style=\"display:none;\">Estimated word count: <span class=\"word-count\">3899<\/span><\/div>\r\n\r\n\t\t\t<\/ol>\r\n\r\n<script type=\"text\/javascript\" src=\"\/wp-content\/themes\/twentyseventeen\/src\/jquery\/components\/filter-guides.js\" async><\/script><\/div>"}},"_links":{"self":[{"href":"https:\/\/my.legal500.com\/guides\/wp-json\/wp\/v2\/comparative_guide\/137406","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/my.legal500.com\/guides\/wp-json\/wp\/v2\/comparative_guide"}],"about":[{"href":"https:\/\/my.legal500.com\/guides\/wp-json\/wp\/v2\/types\/comparative_guide"}],"wp:attachment":[{"href":"https:\/\/my.legal500.com\/guides\/wp-json\/wp\/v2\/media?parent=137406"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}