   
  
IP/N/6/CHE/3  
 
4 March  2022 
(22-2007) Page: 1/26 
Council for Trade -Related Aspects of  
Intellectual Property Rights  Original: English   
 
 
CHECKLIST OF ISSUES ON ENFORCEMENT1 
RESPONSES FROM SWITZERLAND  
Introduction  
The present document is an updated version of the responses of Switzerland to the Checklist of 
Issues on Enforcement as contained in document IP/N/6/CHE/2 of 12 February 2014. This revised 
version of the responses reflects the state of laws and regulations in force in Switzerland on 
17 January 2022.  
 
During the past 15 years, the IP Enforcement System in Switzerland has undergone various 
changes. In the year 2000, a comprehensive revision of the Swiss Federal Constitution ('the 
Constitution') came into force. I n addition, 2007 saw the Federal Procedure Law change with the 
merging of all federal administrative appeal and arbitration committees into one Federal 
Administrative Court. The Swiss system is characterized by federalism and according to 
Articles  122 and 123 of the Constitution, the Confederation has the right to legislate on matters 
such as intellectual property, civil law, civil procedure law, criminal law, and criminal procedure 
law. Until 2011, civil and criminal procedure law was vested with the Canto ns. Based on the new 
rules of the Constitution, the Law on Civil Procedure and the Law on Criminal Procedures came 
into force on 1 January 2011. The organi zation of the judicial system and the administration of 
justice remain with the Cantons. Finally, in 2012, the Federal Patent Court started to operate as 
the court of first instance for actions concerning patents. As of 2017, some rules concerning 
indications of source and the Swiss coat of arms were modernized, leading to novelties in the field 
of enforc ement. More specifically, criteria applicable for the use of Swiss indications of source in 
relation to goods or services were specified and, at the same time, the Swiss Federal Institute of 
Intellectual Property was endowed with further competences to enf orce these laws.  
 
The Constitution establishes the Federal Supreme Court under Article 188. Subject to the 
conditions of federal law, appeals may be made to the Federal Supreme Court in response to 
decisions on IP matters from the higher Cantonal Authority , the Federal Patent Court and, in some 
cases, the Federal Administrative Court.  
 
Enforcement of intellectual property rights (IPRs) is governed by federal legislation. The details of 
the relevant laws and regulations (dates of entry into force and amendme nt, references to the 
official gazettes/compendia in which they were published) can be found in the latest notifications 
of revised IP laws and regulations of Switzerland contained in documents IP/N/1/CHE/ 26 to 
IP/N/ 1/CHE/45 of 2022 . 
 
For the sake of convenience, the Swiss federal laws and regulations relating to intellectual property 
and IP enforcement most often referred to can be found in the non-exhaustive list below. In 
addition to the legislative texts, court decisions and legal opinion also play an important role in 
the development of Swiss law, particularly with regard to the general principles of law.  
 
1. The special intellectual property laws and regulations are:  
 
- the Federal Act on Copyright and Related Rights (SR  231.1, CopA);  
- the Ordinance on Copyright and Related Rights (SR  231.11, CopO);  
 
1 Document IP/C/5  IP/N/6/CHE/3  
 
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  - the Federal Act on the Protection of Topographies of Semi -Conductor Products (SR  231.2, 
 LTo);  
- the Ordinance on the Protection of Topographies of Semi -Conductor Products (SR  231.21, 
OTo);  
- the Federal Act on the Protection of Trade Marks and Indications of Source (SR  232.11, TmPA);  
- the Ordinance on the Protection of Trade Marks and Indications of Source (SR  232.111, 
TmPO);  
- the Ordinance on the Use of Swiss Indications of Source for Food Products (SR 232.112.1) ; 
- the EAER Ordinance on the Use of Swiss Indications of Source for Food Products 
(SR 232.112.11) ; 
- the Ordinance on the Use of "Switzerland"  or "Swiss " for Watches (SR 232.119) ; 
- the Ordinance on the Use of Swiss Indications of Source for Cosmetic Products 
(SR 232.112.3) ; 
- the Federal Act on the Protection of Designs (SR  232.12, DesA);  
- the Ordinance on the Protection of Designs (SR  232.121, DesO);  
- the Federal Act on Patents for Inventions (SR  232.14, PatA);  
- the Ordinance on Patents for Inventions (SR  232.141, OBI);  
- the Federal Act on the Protection of New Plant Varieties (SR  232.16, LPOV);  
- the Federal Act on the Protection of Swiss Coat of Arms and Other Public Signs (SR 232.21, 
CAPA) ; 
- the Ordinance on the Protection of the Swiss Coat of Arms and Other Public Signs (SR 232.211, 
CAPO);  
- the Ordinance on the Register of Designations of Origin and Geographical Indications for Non -
Agricultural Products (SR 232.112.2, Ordinance on Non -Agricultural PDOs and PGIs);  
- the Ordinance on the Protection on Designations of Origin and Geographical Indications for 
Agricultural Products, Processed Agricultural Products, Forestry Products and Processed 
Forestry Products (SR 910.12, PDO/PGI Ordinance);  
- the EAER Ordinance on the Minimum Requirements for Control Procedures of Protected 
Designations of Origin and Geographical Indications (SR 910.112, Ordinance on the Control 
of PDOs and PGIs) ; 
- the Federal Act on the Statute and Tasks of the Federal Insti tute of Intellectual Property 
(SR 172.010.31) ; 
-  the IPI Ordinance on fees (SR 232.148) . 
 
2. The following laws contain certain provisions on specific issues in the field of intellectual 
property:  
 
- the Federal Act on Agriculture (SR 910.1, AgricA);  
- the Ordinance on Viticulture and Importation of Wine (SR 916.140, Ordinance on Wine);  
- the Federal Act on Unfair Competition (SR 241, UCA);  
- the Swiss Code of Obligations (SR 220, CO);  
- the Federal Act on Cartels and Other Restraints to Comp etition (SR 251, CartA).  
 
3. The following laws contain special provisions concerning enforcement and are also applicable 
to the field of intellectual property:  
 
- the Swiss Civil Procedure Code (SR  272, CPC);  
- the Federal Act on the Federal Civil Procedure (SR  273, FCPA);  
- the Swiss Criminal Procedure Code (SR 312.0, CrimPC);  
- the Federal Act on Administrative Procedures (SR  172.021, APA);  
- the Ordinance  on Fees and Costs in Administrative Procedures (SR 172.041.0);  
- the Swiss Criminal Code (SR  311.0, SCC);  
- the Federal Act on the Federal Supreme Court (SR 173.110, FSCA);  
- the Federal Act on the Federal Administrative Court (SR  173.32, FACA) ; 
- the Federal Act on the Federal Patent Court (SR  173.41, PatCA) ; 
- the Federal Act on the Free Moveme nt of Lawyers (SR  935.61,  LawA) ; 
- the Federal Act on Patent Attorneys (SR  935.62, PatAA) ; 
- the Ordinance on Patent Attorneys (SR  935.621, PatAO) ; 
- the Federal Act on the Liability of the Confederation, the Members of its Authorities and its 
Officials (SR  170.32, GLA);  IP/N/6/CHE/3  
 
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  - the Ordinance relating to the Law on Liability (SR  170.321, Ordinance on Liability);  
- the Ordinance on the Notification of Cantonal Criminal Judgments (SR 312.3);  
- the Ordinance on Federal Customs Administration Charges (SR 631.035) . 
 
4. The importance of the Federal Constitution (SR 101, Cst.) must be emphasized, as it contains 
a number of general principles of law, such as legality, equality before the law, good faith and 
proportionality which gui de Swiss legislation and jurisdiction.  
 
5. The principle whereby public international law is part of national law is codified in Article  190 
Cst. It states that all the judicial authorities shall apply both federal acts and international law.  
 
6. In additi on to the texts referred to in paragraphs 1, 2 and 3, and the international intellectual 
property agreements such as the TRIPS Agreement, the Bern e Convention and the Paris Convention, 
it should be noted that Switzerland is also a party to international tr eaties on judicial proceedings, 
such as the Lugano Convention (Convention of 30 October 2007 on Jurisdiction and the Enforcement 
of Judgments in Civil and Commercial Matters; SR 0.275.12) and the Convention for the Protection 
of Human Rights and Fundamenta l Freedoms of 4 November 1950 (ECHR; SR  0.101). The latter 
forms an important basis with regard to certain general principles of law, particularly the right to be 
given a hearing.  
 
7. Lastly, it should be noted that Switzerland and the Principality of Liec htenstein form a single 
customs territory by virtue of the Customs Union Treaty of 29 March 1923 (RS 0.631.112.514). 
Under the Customs Union Treaty the two countries concluded the bilateral Treaty on Patents on 
22 December 1978 (RS 0.232.149.514), whereby the law applicable to the two countries is the Swiss 
Federal Act on Patents for Inventions (PatA). Similarly, the Swiss agricultural legislation also applies 
to Liechtenstein, in particular the provisions on PDOs and PGIs.  
 
8. In view of the complexity of the subject and the difficulty of fully reflecting the system, 
Switzerland reserves the right to revise this communication as and when necessary.  
 
 
Civil and Administrative Procedures and Remedies  
 (a)  Civil judicial procedures and remedies  
 
1.  Specify the courts which have jurisdiction over IPR infringement cases.  
 
Civil judicial remedies are regulated under federal legislation. The Swiss Civil Procedure Code (CPC) 
governs the proceedings before cantonal authorities for contentious civil matters  (Article 1(a) CPC) 
unless the special intellectual property laws contain specific provisions.  
 
Article 5(1) CPC expressly requires each Canton to designate a single court to be responsible 
throughout its territory for dealing with civil actions concerning intellectual property rights 
irrespective of the sum involved. The same applies concerning the Federal Act on Unfair Competition 
(UCA)  - which contains, inter alia , provisions on industrial and business secrets, and on incitement 
to betray these  secrets – if the sum involved is higher than CHF 30,000. The Cantons designate the 
responsible Court in their Cantonal Judicial Organisation Acts. For instance, in the Canton of Geneva, 
the Court of Justice ("Cour de Justice") is the only court competent to determine intellectual property 
matters, while in the Cantons of Zurich and Bern e it is the Commercial Court ("Handelsgericht"). 
These courts of sole jurisdiction are also the courts of last instance at cantonal level.  
 
With regard to patents, the competent judicial authority is the Federal Patent Court. It decides over 
the existence and the infringement of patents, over the grant of licences, the grant of interim 
measures and the enforcement of these decisions (Article 26(1) PatCA). The Federal Pat ent Court 
decides over other civil appeals if they are connected with patents. If, in a civil appeal before a 
Cantonal Court, the question over the invalidity or the infringement of a patent has to be answered 
before deciding over the case, the Cantonal Co urt sets a time -limit to institute legal proceeding s 
before the Federal Patent Court. The Cantonal Court suspends its proceedings until the Federal 
Patent Court passes a final decision (Article 26(3) PatCA). The procedure before the Federal Patent 
Court  is governed  by the Swiss  Civil Procedure  Code (see Article  27 PatCA).  
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  An appeal to the Federal Supreme Court against decisions of the single Cantonal Courts or the 
Federal Patent Court is admissible in disputes relating to intellectual property rights, irre spective of 
the sum involved (Article 75(1) and Article 74(2)(b) FSCA).   
 
In matters of unfair competition, where the sum at stake is less than CHF 30,000, the case is 
brought before the ordinary cantonal civil courts. An appeal to the Federal Court is adm issible 
against the final decisions taken by the last cantonal court only if the appeal raises a question 
concerning a legal principle (Article 74(1)(a), 74(2)(a) FSCA).  
 
2.  Which persons have standing to assert IPRs? How may they be represented? Are 
there requirements for mandatory personal appearances before the court by the right 
holder?  
 
2.1 Which persons have standing to assert IPRs?  
 
2.1.1  Standing to act pursuant to an  IPR or an exclusive licence right:  
 
Any holder of an IPR or the beneficiary of an exclusive licence right whose right is or is likely to be 
infringed has standing to act before the courts (Article s 62(1) and 62(3) CopA; Article 10(1) LTo; 
Articles 55(1) a nd 55(4) TmPA; Article 35(1) and 35(4) DesA; Article 72 and Article 75 PatA). 
Holders of a non -exclusive licence are allowed to join an appeal made by the IPR right holder or 
the holder of the exclusive licence right to claim their own damage.  
 
The CopA, f or instance, states that where there are a number of authors, each co -author has 
standing to bring an action against anyone who has infringed the rights over the common work; 
however, they may do so only on behalf of all those concerned (Article 7(3) CopA) . 
 
Insofar as indications of source are concerned, trade or business associations may bring an action 
for the declaration of a right or a legal relationship or an action pursuant to a contractual obligation 
provided that their statutes authori ze them to de fend the economic interests of their members 
(Article 56(1)(a) TmPA). Standing to act with regard to indications of source is also granted to 
national or regional organi zations which, in accordance with their statutes, are concerned with 
consumer protectio n (Article 56(1)(b) TmPA). These two categories of organi zation also have 
standing to bring an action for a declaration involving a guarantee mark or a collective mark 
(Article  56(2) TmPA).  
 
In addition, the Swiss Federal Institute of Intellectual Property  (IPI) may bring an action for 
declaratory judgment or an action for performance as far as indications of source that have 
designations such as "Switzerland" , "Swiss " or other designations or symbols that indicate the 
geographical territory of the Swiss Confederation (Article 56(1)(c) TmPA) are concerned. 
Furthermore, the canton concerned , to the extent that its name or other designations or symbols 
referring to its ge ographical territory are used, has the same standing (Article 56(1)(d) TmPA).  
 
Regarding the protection of the Swiss coat of arms and other public signs, any person who suffers 
infringement of or threat to their economic interests due to the unlawful use of a public sign may 
request the court to prohibit an imminent infringement, remedy an existing infringement, or 
establish the unlawful nature of an infringement. The same rights are granted to professional and 
trade associations in order to s afeguard their members (Article 21(a) CAPA), as well as 
organi zations of national or regional importance dedicated to the protection of consumers 
(Article  21(b) CAPA). Furthermore, a public body entitled to use a public sign may bring an action 
under the s ame circumstances (Article 22(1) CAPA), as well as the IPI insofar as the use of the sign 
implies a reference to a national authority or an official or semi -official activity (Article 22(2) CAPA).  
 
With regard to unfair competition, anyone whose economic i nterest is or is likely to be infringed 
has standing before the courts (Article 9(1)(a -b) UCA).  
 
2.1.2  Standing to act for a declaratory judgment:  
 
Anyone with a legitimate interest in the declaration of a right or a legal relationship has standing 
to brin g an action (see Article 61 CopA; Article 10(1) TopoA; Article 52 TmPA; Article 33 DesA; 
Articles 28 and 74 PatA; Article 9(1)(c) UCA; Article 20(1)(d) CAPA).  
 IP/N/6/CHE/3  
 
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  2.1.3  Standing to act for the assignment of a right:  
 
Where a patent application has been filed by a person who had no right to be granted the patent, 
the entitled person may request that the patent application, or the patent itself, if it has already 
been granted, be assigned to the entitled person (Article 29(1) PatA). A similar action for 
assignme nt is provided for under the Trade Mark Act (Article 53(1) TmPA) and under the Designs 
Act (Article 34 DesA).  
 
2.2 How may they be represented?  
 
Each party has the right to either represent itself or to be represented by a lawyer with power of 
attorney in legal proceedings (Article 68(1) CPC).  
 
The ability to act as a professional representative before any cantonal and federal court is granted 
to any lawyer admitted to represent parties before Swiss courts under the LawA (Article 68 CPC; 
40 LTF). Before the  Federal Patent Court, patent lawyers, under the Patent Attorneys Act of 
20 March  2009, are also allowed to act as professional representatives (Article 29 PatCA).  
 
2.3 Are there requirements for mandatory personal appearances before the court by the right 
holder?  
 
If the court considers it necessary, it may summon a party, or all the parties, to appear before the 
court in person (Article 68(4) CPC). If a party fails to appear before the court, the court continues 
the procedure in the absence of the su mmoned party (Article 147 CPC). If the absent party provides 
a satisfactory explanation, the court can grant a new time to appear in person before the court 
(Article 148 CPC).  
 
3.  What authority do the judicial authorities have to order, at the request of an 
opposing party, a party to a proceeding to produce evidence which lies within its control?  
 
As a general rule each party in civil proceedings must, except under certain circumstances, prove 
the facts which it cites in order to exercise its rights before the courts (Article 8 CC). However, the 
claimant may rely on evidence which lies within the defendant 's control who, if the court so 
requests, is obliged to produce it, except in the case of correspondence with its lawyers (see 
Article  160(1)(b ) CPC). If a party claims that a document containing a crucial item of evidence lies 
within the control of the opposing party or a third party, the court may, at the request of that 
party, order the opposing party or third party to present that item of evi dence. The opposing party 
may oppose the adducing of the evidence or the formal notice to produce a piece of evidence if 
the law allows it to do so (Article 162 et seq. CPC), especially if by presenting the document a 
person close to the opposing party wou ld be liable under civil or criminal law or if by presenting 
the document the opposing party would be liable under Article 321 Criminal Code (CSCC) for 
revealing a secret (Article 163 CPC).  
 
If a party disputes being in possession of an item of evidence, t he judicial authorities may call upon 
that party to indicate where this item of evidence (e.g. a document) can be found. The party is 
then obliged to reveal the location of the evidence concerned (Article 160(1)(a)  CPC). Failing to do 
so becomes punishable  under criminal law (Article 306 SCC). Any party to civil proceedings which 
has been directed by judicial authorities to reveal any evidence and has been made aware of the 
consequences of making false statements, could either face a custodial sentence of a  period not 
exceeding three years and/or a monetary penalty (Article 306 SCC).  
 
The court forms its opinion based on its free assessment of the evidence taken (Article 157 CPC). 
It will therefore take into account the unjustified refusal to answer a questi on put by the judge or 
to either produce required evidence or indicate where it can be found (see Article 164 CPC). The 
court will also take into consideration the conduct of a party which deliberately disposes of evidence 
or makes it unusable. The court m ay, however , not infer from a party's or third party's legitimate 
refusal to cooperate that the alleged fact is proven (Article 162 CPC).  
 
Evidence which may not, because of its nature, be produced in court or which would damage 
legitimate interests may be  consulted in situ  (Article 181 CPC).  
 IP/N/6/CHE/3  
 
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  If a document is to be found within the control of a third party, that party is required to present 
the document in question (Article 160(1)(b) CPC). This obligation is waived if the content of the 
document concerns f acts in respect of which it could refuse to give evidence (see Article s 165 and 
166 CPC).  
 
Insofar as indications of source as well as Swiss coat of arms and other public signs are concerned, 
the burden of proof is reversed. It is not up to the plaintiff t o prove infringement or unlawful use, 
but up to the person using the indication of source or sign to prove that they are  making lawful 
use of it (Article 51a TmPA; 19 CAPA).  
 
4.  What means exist to identify and protect confidential information brought forward 
as evidence?  
 
Where evidence jeopardizes the legitimate interests of a party or a third party, especially if 
confidential information is concerned, the court may take necessary means to protect these 
interests (see Article 156 CPC).  
 
Witnes ses may refuse to testify concerning matters which, if revealed, would expose them to 
criminal liability under Article 321 SCC (see Article 166(1)(b) CPC).  
 
5.  Describe the remedies that may be ordered by the judicial authorities and criteria, 
legislative  or jurisprudential, for their use:  
 
- injunctions;  
 
-  damages, including recovery of profits, and expenses, including attorney's fees;  
 
-  destruction or other disposal of infringing goods and materials/implements for their  
production;  
 
- any other remed ies. 
 
5.1  Injunctions  
 
The holder of a right over an intangible asset whose IPR is or is likely to be infringed may request 
an injunction from judicial authorities to prevent an infringement if it is imminent, or to stop an 
ongoing one (Article 62(1)(a -b) CopA; Article 10(1) LTo; Article 55(1)(a -b) TmPA; 
Article  35(1)(a -b) DesA; Article s 66 and 72 PatA; Article 9(1)(a -b) LCD; Article 20(1)(a -b) CAPA).  
 
The action to prevent an imminent infringement presupposes a sufficient interest; this exists i f the 
holder of the IPR is directly threatened by the unlawful act, i.e. if there are serious grounds to fear 
infringement of the IPR.  
 
The subject of the action to prevent an ongoing infringement must be defined precisely in the 
submissions accompanying the action. The plaintiff must give an exhaustive description of the 
defendant's unlawful conduct, so that no difficulty can arise when enforcing the judgment. The 
injunction may, as a matter of course, be coupled with the threat of the penalt ies provided for in 
Article 343 CPC (criminal penalty under Article 292 SCC, disciplinary fees up to CHF 5,000 or 
CHF 1,000 for each day of non -compliance) addressed to the defendant.  
 
The claimant must, at the request of the defendant, provide security fo r the payment of costs, in 
particular if he or she does not have a domicile or seat in Switzerland (Article 99(1)(a) CPC).  
 
5.2  Damages, including recovery of profits, and expenses, including attorney's fees  
 
5.2.1  Damages  
 
Anyone who either through negli gence or intentional carelessness infringes an IPR and causes 
damage to the IPR holder, is required under the CO to repair that damage (Article 62(2) CopA; 
Article 10(1) LTo; Article 55(2) TmPA; Article 35(2) DesA; Article 73(1) PatA; Article 9(3) LCD; 
Article 20(2) CAPA ). The right holder then has a choice between various actions for damages and 
recovery provided under the CO: an action for the payment of damages (damnum emergens et IP/N/6/CHE/3  
 
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  lucrum cessans) (Article s 41 et seq . CO), an action for surrender of the proceeds of unjust 
enrichment (Article 62 CO), an action to compensate for non -pecuniary damage (Article 49 CO), 
and an action for the handing -over of earnings in accordance with the principles of business 
conducted in the agent's interest (Article 423  CO). 
 
If the right holder is unable to quantify the damage they have  suffered or the infringer's unlawful 
profit, they may ask the judge to use his/her  discretion in determining the amount of compensation 
(ex aequo et bono ), in the light of the ordinary r un of events and the measures taken by the injured 
party (Article 42(2) CO).  
 
5.2.2  Legal fees  
 
The court rules as a matter of course on the procedural costs of the case (Article 104 CPC). The  
procedural costs include the court costs and the party costs (A rticle 95(1) CPC). As a general rule, 
the court costs are awarded against the party that has lost the case (see Article 106(1) CPC). If 
neither of the parties has won the case on all counts, the costs are allocated in accordance with 
the outcome of the cas e (Article 106(2) CPC). Unnecessary expenses are charged to the party that 
caused them (Article 108 CPC).  
 
At the request of the parties the court decides, by ruling on the dispute itself, whether and to what 
extent the costs of the party that has won the case will be borne by the party that has lost. The 
parties may provide a detailed statement of their expenses before the judgment is delivered 
(Article 105(2) CPC). The compensation includes the costs for professional representation and the 
reimbursement o f necessary outlays (Art icle 95(3)(a -b) CPC). In justified cases, the court may 
also grant reasonable compensation for personal efforts if a party is not professionally represented 
(Article 95(3)(c) CPC).  
 
5.3  Destruction or other disposal of infringing goods and materials/implements for their production  
 
In all fields of intellectual property the court may order items which have been made or used 
unlawfully, as well as instruments, tools and other resources intended mainly for manufacturing 
them, to be confiscated, destroyed or rendered unfit for use (see Article 63(1) CopA; Article 10(1) 
TopoA; Article 57 TmPA; Article 36 DesA; Article 69(1) PatA; Article 23(1) CAPA). An exception is 
made for works of architecture already constructed (Article 63(2) CopA) and semi -conductor 
products acquired in good faith which contain illegal copies of topographies (Article 10(2) TopoA). 
It is permitted to put the latter back into circulation; however, the producer is entitled to receive 
a fair payment. In the event of a dispute, the court determines whether the entitlement to payment 
is substantiated and, if so, fixes the amount of the payment (Article 8  TopoA).  
 
According to trademark law, it is for the court to decide "whether the mark or indication of source  
is to be rendered unrecogni zable or whether the articles are to be rendered unfit for use, destroyed 
or used in a particular manner" (Article 57(2) TmPA).  
 
Even if the case is dismissed, the court may order the destruction of articles manufactured in 
breach of a patent and of the instruments, tools and other resources intended mainly for the 
infringement of a patent (Article 69(3) PatA).  
 
5.4. Any other remedies  
 
Publication of the judgment  
 
At the request of the party that has won the case, the court may order the judgment to be published 
at the expense of the opposing party (Article 66 CopA; Article 10(1) LTo; Article 60 TmPA; Article  39 
DesA; Article 70(1) PatA; Article 9(2) LCD;  Article 26 CAPA).  
 
6.  In what circumstances, if any, do judicial autho rities have the authority to order the 
infringer to inform the right holder of the identity of third persons involved in the 
production and distribution of the goods or services found to be infringing and of their 
channels of distribution?  
 
The TmPA, the C opA, the DesA and the LTo authori ze the right holder, whose right is being or is 
likely to be infringed, to ask the judge to require the other party to indicate the source and the IP/N/6/CHE/3  
 
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  quantity of those goods in its possession which have been unlawfully reprodu ced or unlawfully 
provided with a distinctive sign as well as the addressees' names and the extent of the distribution 
to commercial customers (Article 62(1)(c) CopA; Article 10(1) LTo; Article 55(1)(c) TmPA; 
Article  35(1)(c) DesA; Article 20 (1)(c) CAPA).  The law on patents stipulates that the refusal to 
declare to the "competent authority" the source, the quantity, the addressees and the extent of 
the commercial customers of those products in its possession that have been unlawfully 
manufactured may give rise to civil or criminal proceedings (see Article 66(b) PatA).  
 
7.  Describe provisions relating to the indemnification of defendants wrongfully 
enjoined. To what extent are public authorities and/or officials liable in such a situation 
and what "remedial  measures" are applicable to them?  
 
As a general rule, the party which loses the case will be ordered to reimburse in full the opposing 
party's costs (see Article s 105(2) and 106 CPC). This includes the reimbursement of necessary 
outlays, the costs for pro fessional representation and, in justified cases, a reasonable 
compensation for personal efforts if a party is not professionally represented.  
 
If the defendant suffers damage as a result of wrongful judgment delivered based on a plaintiff's 
petition that constitutes an unlawful act, the defendant may, on the basis of Articles 41 et seq . CO, 
claim compensation via the ordinary procedure.  
 
In the event of unjustified provisional measures (interim measures), the possibility of bringing an 
action via the ordinary procedure against the plaintiff for compensation in respect of the damage 
is explicitly provided for in the federal civil procedure law. The court may make the interim measure 
conditional on the payment of security by the applicant if it is anticipated that the measures may 
cause loss or damage to the opposing party. Article 264(2) CPC provides that the applicant is liable 
for any loss  or damage caused by an unjustified provisional measure. If the applicant proves, 
however, that he or she applied for the measure in good faith, the court may reduce the damages 
or entirely release the applicant from liability. Any security paid must be re leased once it is 
established that no action for damages will be filed; in case of uncertainty, the court may specify 
a suitable period within which the opposing party must bring its action (Article 264(3) CPC).  
 
Whether decisions or judgments are erroneo us is, in principle, verified through the normal channels 
of appeal. The authority and/or the public servant in question is not liable in such a situation. 
According to the decisions of the Federal Supreme Court, an unlawful act giving rise to liability ca n 
occur only if there has been a serious and obvious error. In the case of public authorities and 
officials, the idea of an unlawful act is tied up with that of a breach of official duties. An unlawful 
act occurs if the judge or the public servant is guilt y of negligence or an error which would not 
have been perpetrated by a normally conscientious magistrate (ATF 112 II 231). If they acted or 
intended to act in good faith when, at the request of the plaintiff, they enjoined a particular course 
of action, pr oceedings for damages are excluded.  
 
Liability of members of the Federal Supreme Court, the Swiss Federal Institute of Intellectual 
Property and other independent federal authorities, the Federal Administrative Court, the Federal 
Patent Court, the Federal Administration and other independent federal authorities vis-à-vis third 
parties is governed by the Federal Act on the Liability of the Federal Government, the Members of 
its Authorities and its Public Officials (SR 170.32, GLA; see Article 1(1) GLA). Acco rding to 
Article  3(1) GLA, the Federal Government is liable for damage caused unlawfully to a third party 
by an official in the performance of their duties. The aggrieved party cannot take any action against 
the offending official. Also, the legality of th e final decisions, orders and judgments cannot be 
re-examined in an action for damages (see Article 12 GLA).  
 
Each Canton has its own laws on liability for public law acts. In fact, most Cantons have the same 
system as the Federal Government , with the Cant on being liable for damage unlawfully caused to 
a third party by an official in the performance of their duties.  
 IP/N/6/CHE/3  
 
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  8.  Describe provisions governing the length and cost of proceedi ngs. Provide any 
available data on the actual duration of proceedings and the ir cost.  
 
8.1 Length of proceedings  
 
There are no data on the duration of proceedings. This depends on numerous factors which can 
vary on a case -by-case basis (complexity of the matter, number of exchanges of documents, 
appeal to the Federal Supreme Court, etc.).  
 
If the court takes too long to make a  decision, an objection for denial of justice is possible 
(Article  319(c) CPC).  
 
8.2 Cost of proceedings  
 
The cost of proceedings include s legal and other expenses. The Cantons fix the scale of legal 
charges for the proceedings before cantonal courts (Article 96 CPC).  
 
The court fees at the Federal Patent Court are fixed according to the sum involved in the dispute, 
the scale and difficulty of the case, the way in which the parties proceed and their respective 
financial situation (Article 31(2) PatCA). The court fees range from CHF 1,000 to CHF 150,000 
(Article 31(3) PatCA).  
 
The court fees at the Federal Supreme Court level are also fixed ac cording to the sum involved in 
the dispute, the scale and difficulty of the case, the way in which the parties proceed and their 
respective financial situations (Article 65(2) FSCA). For instance, the court fees for an appeal may, 
depending on the sum invo lved, range from CHF 200 to CHF 100,000 (see the Federal Supreme 
Court's scale of court fees, 31 March 2006; SR 173.110.210.1).  
 
At cantonal level, the judge determines the parties' compensation and the attorney's fees within 
the limits of the scale of cha rges using their discretion to assess the amount of time lost, the nature 
of the work done and the sum involved in or importance of the case (Article 95 CPC).  
 
For cases heard by the Federal Patent Court, a scale determined by the court establishes the 
amount of the costs awarded to the opposing party based on the sum involved in the dispute 
(Article 4 of the Rules for Procedural Costs before the Federal Patent Court, SR 173.413.2). The 
compensation ranges from CHF 2,000 to CHF 300,000 (Article 5 of the Rul es). 
 
For cases heard by the Federal Supreme Court, a scale determined by the court establishes the 
amount of the costs awarded to the opposing party in respect of the court proceedings and also 
takes attorney 's fees into account (Article 4 of Rules for Co sts Awarded to the Opposing Party in 
Cases Heard by the Federal Supreme Court (RS 173.110.210.3)). The costs include the 
compensation payable to the opposing party and its attorney's fees. The compensation payable to 
the opposing party includes the reimbur sement of its disbursements. Where this is justified by 
special  circumstances, the court may also award compensation for time or earnings lost as a result 
of the dispute (with regard to the federal level, see Article 11 of the Rules). For an appeal, the 
amount of the fees ranges between CHF 600 and CHF 4,000 (where the sum involved is less than 
CHF 20,000), and CHF 20,000 and 1% (where the sum involved is more than CHF  5,000,000) – 
see Article 4 Rules for Costs Awarded to the Opposing Party in Cases Heard by the Federal Supreme 
Court. In exceptional cases, such as those requiring an extraordinary amount of work (where the 
evidence is lengthy and difficult to substantiate and the case is a big and complex one), the Federal 
Supreme Court may award fees w hich are higher than the normal rate (Article 8 of Rules for Costs 
Awarded to the Opposing Party in Cases Heard by the Federal Supreme Court).  
 
It should be noted that the Federal Supreme Court's scale of charges does not apply to relations 
between the law yer and their client; these are governed by the contract of agency provisions of 
the code of obligations. In this case, attorney 's fees are normally calculated in accordance with a 
scale laid down by the bar association of each Canton and depend on a numbe r of factors, including 
the amount involved in the dispute.  
 
Legal aid is granted to an indigent party: this applies at both the federal level (Article 64 FSCA; 
Article 34 PatCA) and the cantonal level (Art icles 117–123 CPC).  
 IP/N/6/CHE/3  
 
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  In light of the foregoing, it is difficult to put a precise figure on the total cost of a case owing to 
numerous factors which may be taken into account, such as the sum involved in the dispute, the 
length of the proceedings, the number and length of the hearings, the cos t of expert opinions and 
witnesses' allowances.  
 
 
(b)  Adminis trative procedures and remedies  
 
9.  Reply to the above questions in relation to any administrative procedures on the 
merits and  remedies that may result from these procedures.  
 
With regard to intellectual property, only the federal authorities are involved in administrative 
procedures. Articles 7 to 43 of the Federal Act on Administrative Procedure (APA) apply to 
first-instance administrative procedures, in particular before the Swiss  Federal Institute of 
Intellectual Property  (IPI). The appeals procedure involving the Federal Administrative Court is, 
however, governed by Articles 44 to 71 of the APA and by the Federal Act on the Federal 
Administrative Court (FACA). Where an administra tive law appeal to the Federal Supreme Court is 
admissible, proceedings before this authority are governed by Articles 82 to 112 FSCA.  
 
It should be stressed that Swiss intellectual property law does not provide for administrative 
procedures on the merits and remedies for IPR infringements such as those referred to within the 
context of judicial proceedings. However, for reasons of transparency , a description is given of 
the rules which apply to administrative procedures in general. The following may be cit ed as types 
of administrative procedure s to which an IPR holder may have recourse to assert their right:  
 
- Opposition procedure by the holder in respect of a registration which they considers to be 
in conflict with their IPR2; 
 
- a request for intervention at the border.  
 
9.1  Specify the administrative authorities which have jurisdiction over IPR infringement cases  
 
Opposition procedure  
 
This procedure is provided for in the field of trademarks, geographical indications and patents.  
 
The holder of a prior mark may lodge an objection to a new registration with the IPI within three 
months of that registration being published (Article s 31 et seq . TmPA).  
 
Appeals against decisions of the IPI may be lodged with the Federal Administrative Court (Article  44 
APA). If the objector wins their case, the registration of the mark will be revoked. The Federal 
Administrative Court's decisions in trademark opposition cases are final (Article 73 LTF).  
 
Opposition procedure is based on p lausibility. It is supposed to be quick and inexpensive. Beside 
the opposition procedure, a nullity procedure is possible before the civil courts . 
 
It is also possible to oppose patent applications within nine months after the publication of the 
registrati on with the IPI (Article 59 c PatA). Anyone may oppose the registration based on absolute 
grounds for refusal, which are, however, limited to the exclusion of patentable material on grounds 
of morality (Article 1 a, 1b and 2 PatA). Opposition against lack of  novelty or inventive step is not 
possible, as these elements are not assessed during the examination of a patent. Appeals against 
these decisions are dealt with in the first instance by the Federal Administrative Court (see 
Article  59c(3) PatA) and in the  final instance by the Federal Supreme Court.  
 
With regard to geographical indications, anyone who can prove a legitimate interest or the Cantons 
may lodge an objection to the registration of a geographical indication with the Federal Agriculture 
Office or  the IPI (see Articles 10 and 11 Ordinance on Agricultural PDOs and PGIs; Article 9 
Ordinance on Non -Agricultural PDOs and PGIs). Appeals against these decisions are dealt with in 
the first instance by the Federal Administrative Court (Article 44 APA) and in the final instance by 
the Federal Supreme Court. Possible grounds for objection may include the non -representative 
 
2 Opposition proceedings are covered by Article 62 of the TRIPS Agreement. Except in the case of 
trademarks, opposition proceedings may be initiated for reasons other than that of a conflict with a prior right.  IP/N/6/CHE/3  
 
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  nature of the applicant group, a conflict with a well -known or reputable mark or name which is 
completely or partly homonymous and has bee n in use for a long time.  
 
Measures at the border  
 
The Customs Authorities are responsible for measures at the border. They may suspend the release 
into free circulation of a suspect consignment " ex officio " and alert the persons referred to in 
section 9.2 .1 below or may act on request from such a person. The Customs Authorities' decision 
cannot be appealed. The introduction of an appeals procedure would run counter to the goal 
pursued by the Customs Authorities, viz. to act in as simple and rapid a manner as possible to give 
the applicant the time to obtain provisional measures from the civil court. An appeal could actually 
prevent the Customs Authorities from acting in time. It should be noted that if someone applies 
for a measure at the border, as a rule,  provisional measures from the civil law judicial authorities 
should be requested within the prescribed periods (see, for instance, Article 77(2) CopA; 
Article  72(2) TmPA).  
 
9.2  Which persons have standing to assert IPRs? How may they be represented? Are there 
requirements for mandatory personal appearances before the administrative authority by the right 
holder?  
 
9.2.1  Which persons have standing to assert IPRs?  
 
Opposition procedure in the event of conflict with a prior right  
 
With regar d to trademarks, only the holder of a prior mark which has been filed or registered, or 
a well -known mark may oppose the subsequent registration of another mark within three months 
of that mark being published (Article 31, 3(2) and 3(3) TmPA). Insofar as p atents are concerned, 
any person may, within nine months of publication of a patent registration, oppose the issuing of 
the patent (Article 59 c PatA). With regard to an appeal to the Federal Administrative Court against 
decisions concerning opposition appl ications, anyone involved as a party to the procedure which 
led to the decision appealed against or anyone excluded from the procedure by the decision 
appealed against has standing to act (Article 48 APA).  
 
Measures at the border  
 
The following have standi ng to apply for action to be taken: the holder of a trademark, copyright or 
related right, the right to an industrial design or integrated circuit topography, the registered holder 
of a geographical indication, copyright or related rights collecting societ ies, licensees entitled to 
lodge a civil procedure or even trade or business associations which are authori zed to do so with 
regard to geographical indications (Article s 75(1) and 76(1) CopA and Article 12 TopoA with a 
cross-reference to Article 75(1) CopA ; Article 71(1) TmPA; Art icle 47 DesA; Art icle 86b PatA). In 
regard to indications of source , to the extent that designations such as "Switzerland" , "Swiss " or 
other designations or symbols that indicate the geographical territory of the Swiss Confederatio n are 
used, the IPI has standing to apply for action to be taken (Article 71(1) TmPA). As far as the 
protection of the Swiss coat of arms and other public signs is concerned, the same rules apply 
(Article  31(2) CAPA).  
 
9.2.2  How may they be represented?  
 
At all stages of the administrative procedure, a party may be represented unless it has to act in  
person, or be assisted if this possibility is not ruled out in view of the urgency of an official inquiry. 
The person representing or assisting the party in question must possess civic rights (Article  11 
APA).  
 
In administrative procedures, in both the first and final instance, there is no obligation to be 
represented by a lawyer (see Article 11 APA; conversely Article 40  FSCA). However, any perso n 
who is involved in an administrative procedure and does not have a residence or princip al place of 
business in Switzerland must designate an address for service in Switzerland, unless international 
law or the competent foreign body permits the authority to serve documents directly in the state 
concerned. The IPI is entitled to declare to the competent foreign body that direct service is 
permitted in Switzerland in intellectual property matters provided Switzerland is granted reciprocal 
rights  (Article 13( 1) PatA; Article 42 TmPA; Article 18 DesA).  IP/N/6/CHE/3  
 
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Nevertheless, there are provisions requiring parties to be represented by an attorney: anyone who 
is party to an administrative procedure concerning intellectual property and who is neither resident 
in nor has their head office in Switzerland must be represented by an attorney established in 
Switzerland, unless international law or the competent foreign body permits the authority to serve 
documents directly in the state concerned (Article 42 TmPA; Article 5 TmPO;  Article 18 DesA; 
Article 5 DesO; Article 13 PatA and Article 8 PatO). In addition, if more than 20 people submit 
collective or individual applications to defend the same interests, the authority may require them 
to select one or more representatives for t he procedure (Article 11 a APA).  
 
9.2.3  Are there requirements for mandatory personal appearances before the administrative 
authority by the right holder?  
 
The parties are required to collaborate with the court to establish the facts of the case at hand and 
have a wider obligation under federal law to provide or disclose information. The authority may 
declare applications inadmissible if the parties refuse to cooperate insofar as they can be expected 
to do so (Article 13 APA).  
 
9.3  What authority do  the administrative authorities have to order, at the request of an opposing 
party, a party to an administrative procedure to produce evidence which lies within its control?  
 
The APA does not contain any direct or exhaustive answer to this question. With r egard to the 
procedure of taking evidence, the rules of the Federal Act on Federal Civil Procedure (FCPA, 
SR 273) apply mutatis mutandis (Article 19 APA), namely those relating to proof and evidence 
such as that provided by witnesses, documents, visual inspection and experts. The parties are 
required to produce all the evidence which lies within their control in the legal proceedings (see 
Article 50(1) FCPA). If a party claims that a document containing a crucial item of evidence lies 
within the c ontrol of the opposing party or a third party, the court may, at the request of that 
party, order the opposing party or third party to present that item of evidence.  
 
If a party disputes being in possession of an item of evidence, the judicial authorities may call upon 
it, subject to the statutory penalties, to indicate where this item of evidence (e.g. a document) can 
be found (see Article 50(1) FCPA).  
 
Documents which may not, because of their nature, be produced in court or which would damage 
legitimate interests may be consulted in situ  (Article 53 FCPA).  
 
If a document is to be found within the control of a third party, that party is required to present 
the document in question. This obligation is waived if the content of the document concerns facts 
in respect of which it could refuse to give evidence as a witness pursuant to Article 42 FCPA  (see 
Article 51(1) CPC).  
 
In the event of a refusal to cooperate, the authority may apply statutory fines (Article 292 of the 
Criminal Code (SCC)) or direct enforcem ent against the person of the obligor or their assets 
(Article  41 APA). The appeals authority may reprimand or impose a disciplinary fine of up to 
CHF 3,000 on the parties or their representative if they break with the conventions or disrupt the 
conduct of  a case (Article 60 APA). It should be noted that the authority must not apply a means 
of constraint which is more rigorous than required by the circumstances (proportionality rule; 
Article 42 APA).  
 
9.4  What means exist to identify and protect confidenti al information brought forward as 
evidence?  
 
The party or its attorney is entitled to consult, under the auspices of the authority called upon to 
hear and determine the matter, all documents serving as evidence (Article 26(1) APA). The 
authority may refuse  permission to consult the documents only on the following conditions: if 
important public interests of the Confederation or the Cantons (in particular the internal or external 
security of the Confederation) or important private interests (particularly tho se of the opposing 
party) require that secrecy be maintained or if the interests of an official enquiry which has not yet 
been closed so require (Article 27(1) APA). Refusal to authori ze the consultation of documents may 
extend only to those which have to be kept secret (Article 27(2) APA). The provisions of the Federal 
Act on Federal Civil Procedure (FCPA) apply mutatis mutandis to the protection of confidential IP/N/6/CHE/3  
 
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  information in the production of the documents held by third parties and in the procedures 
governing the giving of evidence (Article 19 APA, which has a cross -reference to Article 51  FCPA). 
The judge may order a document containing confidential information to be concealed wholly or 
partly from the opposing party or where necessary from both parties (see Article 38 FCPA). If there 
are grounds for withholding only certain passages of a document, the court may order those 
passages to be concealed from view by affixing seals or in some other way (see Article 51(1) 
FCPA). It may also order the presiding m agistrate or a delegation from the court to examine 
confidential information at the premises of the holder of that information, in order to prevent 
legitimate interests from being damaged by the disclosure of the documents.  
 
9.5 Describe the remedies that may be ordered by the administrative authorities and criteria, 
legislative or jurisprudential, for their use:  
 
9.5.1  Injunctions  
 
May be ordered only by the judicial authorities. The IPI cannot grant injunctions. In case s where 
an appeal is pending, the Federal Administrative Court may grant interim measures to uphold an 
existing situation or to secure threatened interests (Article 56 APA).  
 
9.5.2  Damages, including recovery of profits, and expenses, including attorney's f ees 
 
Damages  
 
They may be ordered only by the judicial authorities.  
 
Administrative expenses  
 
The competent authority also determines the procedural and legal costs (Article 63 and 64 APA). 
Thus,  the IPI, for instance, decides by ruling on the opposition i tself, whether and to what extent 
the costs of the party which wins the case will be borne by the losing party (Article 34 TmPA).  
 
Procedural costs : as a general rule, the procedural costs, which comprise the fee for granting the 
order, the administrative fees and disbursements, are borne by the losing party. No procedural 
costs may be awarded against the federal authorities. Costs may be imposed against a party that 
contravenes procedural rules (Article 63 APA).  
 
Legal costs : The competent authority may, a utomatically or upon request, award the party which 
has won on all or some of the counts, compensation for the essential, relatively high expenses it 
has incurred, particularly in respect of attorney 's fees (Article 64 APA).  
 
The rules on costs and compens ation in connection with administrative proceedings are contained 
in the Ordinance on Costs and Compensation in respect of Administrative Procedures of 
10 September 1969 (SR 172.041.0).  
 
9.5.3  Destruction or other disposal of infringing goods and materials/implements for their 
production  
 
The destruction or other disposal of such goods may be ordered only by the judicial authorities. 
Under certain circumstances, Customs Authorities may destroy infringing goods without judicial 
authority.  
 
9.5.4  Other  remedies  
 
The administrative authorities may not order other remedies such as the publication of the 
judgment.  Publication of the judgment:  At the request of the party that has won the case, the 
court may order the judgment to be published at the exp ense of the opposing party (Article 66 
CopA; Article 10(1) LTo; Article 60 TmPA; Article 39 DesA; Article 70(1) PatA; Article 9(2) LCD; 
Article 26 CAPA).  
 IP/N/6/CHE/3  
 
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  9.6 In what circumstances, if any, do administrative authorities have the authority to order the 
infringer to inform the right holder of the identity of third persons involved in the production and 
distribution of the goods or services found to be infringing and of their channels of distribution?  
 
It may be ordered only by the judicial authorities.  
 
9.7 Describe provisions relating to the indemnification of defendants wrongfully enjoined. To 
what extent are public authorities and/or officials liable in such a situation and what "remedial 
measures" are applicable to them?  
 
Under the Federal Act on the Liabi lity of the Federal Government, the Members of its Authorities and 
its Public Officials (GLA, SR 170.32), the Federal Government is liable for the damage caused 
unlawfully to a third party by an official in the performance of their duties, irrespective of whether 
the official was negligent. The injured party cannot bring an action against the negligent official. If 
a third party claims damages from the Federal Government, the latter immediately notifies the 
official, against whom it could exercise a right o f appeal (Article 3 GLA). If the Confederation 
compensates for the damage, it may bring an action for indemnity against the official if they caused 
the damage intentionally or as a result of gross negligence, even after the employer/employee 
relationship h as been terminated (Article 7 GLA). The official is liable for damage caused directly to 
the Confederation as a result of a violation of their official duties, either intentionally or through 
serious negligence (Article 8 GLA). The general provisions on th e creation of obligations resulting 
from unlawful acts (Code of Obligations) are applicable to the Confederation's claims against its 
officials (Article 9(1) GLA). The provisions concerning officials apply inter alia to members of the 
Federal Supreme Court , the Federal Administrative Court, the Federal Patent Court and the Federal 
Criminal Court, members of the independent federal authorities and of the federal administration, 
to officials and other servants of the Confederation and to all persons directly entrusted with public 
law tasks by the Confederation (Article 1(1), Article 2(1), Articles 3 to 10 GLA).  
 
Under the same law, criminal proceedings are also possible if felonies or misdemeanours are 
committed by officials in the performance of their duties (Article s 13 et seq . GLA). Provision is also 
made for disciplinary liability (Articles 17 -18 GLA). If a body or an employee of an independent 
institution of the ordinary civil service entrusted by the Confederation with carrying out public law 
tasks wrongfully causes, in the performance of these activities, damage to a third party, the 
institution is liable for this wrong vis-à-vis the injured party and the Confederation is liable, vis-à-
vis the injured party, for the damage in respect of which the i nstitution is not able to provide 
compensation. It can – as can the institution – take action against the negligent official (Article 19 
GLA).  
 
9.8 Describe provisions governing the length and cost of proceedings. Provide any available data 
on the actual d uration of proceedings and their cost.  
 
Cost  
 
For the charges and costs of proceedings with the IPI, see the Ordinance on the Charges of the Swiss 
Federal Institute of Intellectual Property, SR 232.148.  
 
For charges, costs and compensations in administrative procedures, see the Ordinance on Costs and 
Compensation in respect of Administrative Procedures (RS 172.041.0) with cross reference to the 
Rules on Costs and Compensation in respect of Procedures at the Federal Administrative Court 
(RS 173.3 20.2).  
 
With regard to the cost of proceedings under the auspices of the Customs Authorities:  A fee of 
between CHF 1,500 and CHF 3,000 is charged for the processing of applications. Each application 
may be renewed if a fee between CHF 500 and CHF 1,500 is paid (Regulation on Charges levied by 
the Customs Authorities, SR 631.035).  The holding and the notification cost at least CHF  50. 
 
Length  
 
The period of time permissible for an authority to decide cannot be determined in the abstract. It 
depends on a numb er of factors, including the complexity of the case and the interests at stake.  
 IP/N/6/CHE/3  
 
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  For opposition proceedings, it is difficult to indicate a precise average figure ; however for a simple 
case (with a single exchange of documents and only three extensions of t he periods allowed for 
replying), the length will be between eight and 12 months. The IPI endeavours to ensure that the 
proceedings are completed swiftly.  
 
An appeal to the Federal Administrative Court against a decision to have a judgment set aside can 
take on average eight to ten months. It should be pointed out that a party can at any time appeal 
to the supervisory authority on the grounds of a miscarriage of justice or unjustified delay against 
an authority which, without good reason, refuses to act or delays taking a decision (Article 46 a APA).  
 
 
Provisional Measures  
 
(a)  Judicial measures  
 
10.  Describe the types of provisional measures that judicial authorities may order, and 
the legal basis for such authority.  
 
10.1  Civil procedural law  
 
The Swiss Civil Procedure Code (CPC) governs the judicial authorities' powers and the conditions 
for ordering provisional measures in civil proceedings (Article s 261–269 CPC).  
 
The various provisional measures are not listed by the law in an exhaustive manner; the court can 
and must adapt them to take account of the specific characteristics of each individual case 
(Article  262 CPC). In general, the provisional measures are concerned essentially with 
guaranteeing the de facto  or de jure situati on or safeguarding the legitimate interests of the parties 
to the proceedings, up until the final judgment. With regard to intellectual property, the following 
provisional measures should be noted (e.g. Article 65 CopA; Article 59 TmPA; Article 38 DesA; 
Article 10(1) TopoA; Article 77(1) PatA; Article 43 LPOV; Article 25 CAPA):  
 
- measures to ensure that the relevant evidence in connection with the alleged infringement 
is preserved;  
- measures to identify the source of goods made or released for circulation  unlawfully or to 
obtain a precise description of the processes allegedly applied illegally, of the products 
allegedly counterfeited or manufactured illegally and of the facilities, tools, etc. used in their 
manufacture;  
- precautionary measures to maintai n the existing de facto  situation;  
- measures to ensure on a provisional basis the exercising of the claims to prevent or put an 
end to the disturbance.  
 
10.2 Criminal procedural  law 
 
There are two types of provisional measures in criminal proceedings.  
 
The first prompts judicial and police authorities to take temporary measures to guarantee that 
circumstantial and other evidence is preserved. The public prosecutor, however, may only take these 
measures if (Article 197 CrimPC):  
 
- they are p ermitted by law;  
- there are reasonable grounds for suspicion of a criminal act;  
-  there are no more moderate measures to reach the same goal;  
- the seriousness of the criminal offence justifies the measure.  
 
With regard to intellectual property, the publ ic prosecutor may inter alia seize the allegedly 
counterfeit items and the instruments and implements used principally for counterfeiting purposes 
(see Article 44 DesA; conversely Article 72 CopA; Article 68 TmPA; Article 69 PatA; Article 23 
CAPA). The public prosecutor may order the seizing of allegedly counterfeit items or of instruments 
and implements used mainly for counterfeiting purposes which can used as evidence (Article 263 
CrimPC). According to the Federal Supreme Court, the judicial authoritie s may order provisional 
measures in all IPR -related criminal proceedings in accordance with the " in majore minus " IP/N/6/CHE/3  
 
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  principle.3 It should be noted that an exception applies to completed works of architecture. 
According to Article 72 CopA, these may not be c onfiscated.  
 
The second provisional measure empowers the judicial and police authorities to resort to coercive 
or constraining measures to ensure that the suspect is present throughout the proceedings and 
above all that the final decision is enforced. Remand and preventive detention, however, are only 
permitted if there is a strong suspicion that the accused has committed a felony or misdemeanour 
and there is a serious concern that the accused (Article 221 CrimPC):  
 
- will evade criminal proceed ings or the anticipated sanction by absconding;  
- will influence people or tamper with evidence in order to compromise efforts to establish the 
truth; or  
- will pose a considerable risk to the safety of others by committing serious felonies or 
misdemeanours si nce he or she has already committed similar offences.  
 
Where there is a risk in any delay, the police or members of the public may provisionally seize 
items or assets on behalf of the public prosecutor or the courts (Article 263(3) CrimPC).  
 
11.  In what c ircumstances may such measures be ordered inaudita altera parte ? 
 
11.1 Civil procedural law  
 
In general, the judge gives the opposing party the opportunity to be heard ; this fundamental 
principle stems from Article 29(2) Cst. However, if the infringement is imminent such that time 
does not permit the opposing party to be heard, the judge may order emergency measures subject 
to an application simply being made (Article 26 5 CPC). This presupposes that not only are all the 
conditions satisfied for the granting of the provisional measures but also that the applicant 
demonstrates that the likely imminence of the threat of infringement is such that there is no time 
left to hear  the opposing party. The latter must be notified as soon as the provisional measures 
have been carried out.  
 
11.2  Criminal procedural law  
 
In criminal proceedings, compulsory measures must be ordered in writing and the persons directly 
concerned must be given a copy of the warrant and of any records relating to its execution against 
confirmation of receipt (Article 199 CrimPC). If the person in possession of the seized article is not 
present while it is actually being seized, they must be notified as soon as the provisional measure 
has been carried out (Article 29 Cst and Article 6 European Convention on Human Rights, ECHR).  
 
12.  Describe the  main procedures for the initiation, ordering and maintenance in force 
of provisional measures, in particular relevant time -limits and safeguards to protect the 
legitimate interests of the defendant.  
 
12.1 Civil procedural law  
 
The main procedures for the initiation, ordering and maintenance in force of provisional measures, 
in particular relevant time -limits and safeguards to protect the legitimate interests of the defendant, 
are governed by the CPC and by the federal intellectual proper ty laws. Anyone wishing to apply for 
provisional measures has to credibly demonstrate that a right to which they are  entitled has been 
violated or a violation is anticipated, and that the violation threatens to cause not easily reparable 
harm to the applic ant (Article 261 CPC). Reasons to order provisional measures could be (see 
Article  65 CopA; Article 10(1) TopoA; Article 59 TmPA; Article 38 DesA; Article 77 PatA; Article 43 
LPOV; Article 25 CAPA):  
 
- to preserve evidence ; 
- to establish the origin of the man ufactured goods infringing the intellectual property right ; 
- to preserve facts ; 
- to temporarily cease or prevent the infringement . 
 
3 Accordin g to the " in majore minus " principle the judge may confiscate articles made or used illegally 
as well as instruments, tools and other resources intended mainly for their manufacture.  He/She may also 
order the provisional seizure of these articles.  
 IP/N/6/CHE/3  
 
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As a general rule, the court gives the opposing party the opportunity to be heard (Article 29 Cst., 
Article 53 and Article 253  CPC). In the event of an emergency measure being imposed, the opposing 
party must be notified as soon as the measures have been carried out.  
 
The provisional measures guarantee that the applicant's rights will be provisionally protected for the 
duration o f the proceedings. However, they may already be applied for before the action is brought. 
If need be, the court, when it allows the application, will grant the applicant a period to bring the 
action, informing them that the provisional measures will lapse if they fail to act within that period 
(Article 263 CPC). The measures become automatically ineffective when the decision on the merits 
comes into force. The court may order their continuation if it serves the enforcement of the decision 
or if the law so p rovides (Article 268(2) CPC). The judge always has the option to modify or revoke 
the provisional measures they have ordered if the circumstances have changed or if the measures 
have proven unjustified (Article 268(1) CPC).  
 
The applicant is liable for any loss or damage caused by unjustified provisional measures. If the 
applicant proves, however, that he or she applied for the measures in good faith, the court may 
reduce the damages or entirely release the applicant from liability (Article 264(2) CPC). The court 
may make the provisional measure conditional on the payment of security by the applicant if it is 
anticipated that the measures may cause loss or damage to the opposing party (Article 264(1) CPC).  
 
12.2 Criminal procedural law  
 
It is for the judi cial authorities (the public prosecutor and the court) to order the necessary 
provisional measures.  
 
It is also for the public prosecutor to lift the applied measures as soon as the conditions which led 
to the measures being taken have been remedied or sat isfactorily addressed (see Article 267(1) 
and Article 212(2)(a) CrimPC). The fate of the items and assets that were seized must be 
determined in the final judgment at the latest (Article 267(3) -(6) CrimPC).  
 
All measures are subject to the proportionality rule (Article 5(2) Cst.). This rule requires the judge 
to resort, if possible, to less incisive measures, such as the drawing -up of an inventory or the 
taking of photographs (see also Articles 212(2) and 268 CrimPC).  
 
The provisional measures may be the su bject of a judicial review at cantonal level (Article 393 
CrimPC). However, during the appeals process, the provisional measures will stay in place until 
the court of appeals has issued its decision (see Article 387 CrimPC).  
 
13. Describe provisions governing the length and cost of proceedings. Provide any 
available data on the actual duration of proceedings and their cost.  
 
No data are available on the usual length and cost of proceedings concerning the provisional judicial 
measures pertai ning to intellectual property rights.  
 
In general, it can be said that the length of the proceedings is, by the very nature of the measures, 
short. The proceedings are only summary (" Summarverfahren ") (Article 248(d) CPC); the judge who 
investigates the pr oceedings decides alone and certain conditions which must be satisfied in ordinary 
proceedings are not required (for example, the imminence of the danger does not have to be proven 
but only made to appear plausible). The length also depends on the kind of provisional measures 
requested and the period of urgency. Finally, evidence must in principle be provided in the form of 
physical records, even though other evidence can be also admissible in certain cases (Article 254 
CPC). 
 
The cost of the proceedings ca n vary from one Canton to another and can depend on both the 
complexity of the particular case and the amount involved in the dispute.  
 IP/N/6/CHE/3  
 
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  (b)  Administrative measures  
 
14.  Reply to the above questions in relation to any administrative provisional measures.  
 
The Swiss Federal Institute of Intellectual Property cannot order provisional measures. It cannot, 
either on its own initiative or at the request of a party, provisionally cancel a registration, since 
this would not be compatible with the purpos e of the IPR registers (public confidence in 
documents). A party that wishes to obtain provisional measures in a registration matter must 
request them from the judicial authorities.  
 
In principle, within the framework of the opposition procedure, the Feder al Administrative Court 
may, after receiving the appeal document, order provisional measures, on its own initiative or at 
the request of a party, provided that such measures are necessary in order to maintain 
provisionally intact a de jure or de facto  situation (see Article 56 APA). However, this possibility 
remains theoretical since the de jure or de facto  situation, except regarding the trademark 
opposed, is not affected by the IPI's decision if a party has lodged an appeal against that decision.  
 
An admi nistrative measure comparable to a provisional measure ( inaudita altera parte ) is the one 
taken by the Customs Authorities when suspending the release into free circulation of goods 
suspected of infringing an intellectual property right.  
 
 
Special Requirements Related to Border Measures  
15.  Indicate for which goods it is possible to apply for the suspension by the customs 
authorities of the release into free circulation, in particular whether these procedures are 
available also in respect of goods which involve infringements of intellectual property 
rights other than counterfeit trademark or pirated copyright goods as defined in the TRIPS 
Agreement (footnote to Article 51). Specify, together with relevant criteria, any imports 
excluded from the appl ication of such procedures (such as goods from another member 
of a customs union, goods in transit or de minimis imports). Do the procedures apply to 
imports of goods put on the market in another country by or with the consent of the right 
holder and to go ods destined for exportation?  
 
An application may be lodged by any entitled person like the right holder, the holder of an exclusive 
licence (or an authori zed collective rights management organi zation regarding rights according to 
CopA) to the Customs Auth orities to suspend the release into free circulation of goods if they have 
valid grounds for suspecting that the importation , exportation or transit of goods infringing an 
intellectual property right covered by the border measures provisions may take place . 
 
In addition to counterfeit trademark goods and pirated copyright goods, Swiss law also provides 
for border measures in respect of goods infringing rights in relation to indications of source, public 
signs, geographical indications, industrial designs, p atents, and the topographies of integrated 
circuits. These border measures are specifically governed by the following provisions:  
 
- Articles  75 to 77 h of the CopA and Articles 18 to 21 of the CopO;  
- Article 12 (which refers back to Articles 75 to 77 h of the CopA) of the TopoA and Articles 16 
to 19 of the TopoO;  
- Articles  70 to 72 h of the TmPA and Articles 54 to 57 of the  TmPO;  
- Articles  46 to 49 of the DesA and Articles 37 to 40 of the DesO;  
- Articles  86a to 86k of the PatA and 112 -112f of the PatO;  
- Article 32 of the CAPA and Articles 7 to 9 of the CAPO;  
- Articles 1 to 5 and Annex 1 (tariff) to the Regulation on Charges levied by the Customs 
Authorities.  
 
With regard to the protection of the Swiss coat of arms and other public signs, the law refer s to an 
analogous application as in Article 70 to 72 h TmPA (Article 32 CAPA).  
 
The procedure applies also to goods stored in a Swiss customs warehouse . With regard to patent 
rights and goods in transit, Customs Authorities will only take action if a right holder can 
demonstrate that they are  entitled to prevent importation into the country of destination 
(Article  8(3) PatA).  IP/N/6/CHE/3  
 
- 19 - 
 
   
Swiss Law does not provide for a de minimis  exception. Customs Authorities may also act against 
small consignments and on infringing goods intended for private use. However, if Customs 
Authorities confiscate goods intended for private use, no criminal liability will apply.  
 
These customs procedures do not apply, however, to imports of goods put on the market in another 
country by or wit h the consent of the right holder.  
 
16.  Provide a description of the main elements of the procedures relating to the 
suspension of the release of goods by customs authorities, in particular the competent 
authorities (Article 51), the requirements for an application (Article 52) and various 
requirements related to the duration of suspension (Article 55). How have Articles 53 
(security or equivalent assurance), 56 (indemnification of the importer and of the owner 
of the goods) and 57 (ri ght of inspection and information) been implemented?  
 
With regard to the requirements which must be met by an application for suspension of the release 
of goods, the Customs Authorities provide interested groups with instructions on the procedure to 
be fol lowed.4 The request must contain certain information: data on the IPR holder, the person 
entitled to use it or their representative, a copy of the registration certificate, circumstantial 
evidence which suggests that counterfeit products are being importe d, exported, in transit or 
stored in a Swiss customs warehouse, a precise description of the goods, if possible details of the 
counterfeiting methods, the characteristics of the counterfeit or imitated goods, the firms involved 
(carrier, importer, etc.) an d the consignments allegedly containing illegal products. Furthermore,  
the request must contain a declaration by the applicant as to whether or not they wish that the 
Customs Authorities send samples of the counterfeit goods to the right holder, destroy co unterfeit 
goods, and  – if design or trademark rights are concerned – retain counterfeit goods even if they 
are being shipped for personal use only.  
 
The Customs Authorities suspend the release of such goods into free circulation for up to ten 
working days as from the date of the request to enable the applicant to obtain provisional 
measures. In duly substantiated cases, the Customs Authorities may hold the goods for a 
maximum of an additional ten working days (Article 77(2) and (3) CopA; Articl e 12 TopoA; 
Article  72(2) and (3) TmPA; Article 48(2) and (3) DesA; Article 86 c(2) and (3) PatA). If it is 
established, prior to the expiry of these time -limits, that the applicant is unable to obtain 
provisional measures, the goods are released immediatel y (Article 20(3) CopO; Article 18(3) 
TopoO; Article 56(3)  TmPO; Article 39(3) DesO; Article 112 b(3) PatO).  
 
In order to protect the defendant or third parties from damages, the Customs Authorities may 
require a liability declaration or – in justified cases  – an appropriate security or equivalent 
assurance  from the applicant (Article 77 h CopA; Article 12 TopoA; Article 72 h TmPA; Article 49 
DesA; Article 86 k PatA).  
 
The applicant  is authori zed to examine the goods  during  their suspension.  The person entitled  to 
dispose  of the goods  (owner,  shipper,  etc.) may also take part in this examination  to protect  trade 
or industrial secrets (Article  77b(2) CopA; Article 72 b TmPA;  Article  48b DesA; Article 86 e PatA; 
Article 12  TopoA).  
 
17.  Describe provisions governing the length and cost of proceedings. Provide any 
available data  on the actual duration of proceedings and their cost. How long is the validity 
of decisions  by the competent authorities for the suspension of the release of goods into 
free circulation?  
 
It usually takes one to two months to examine an application for suspension of the release of 
goods. The application is normally valid for two years unless made for a shorter period. A fee of 
between CHF 1,500 and CHF 3,000 is charged for t he processing of applications. Each application 
may be renewed if a fee between CHF 500 and CHF 1,500 is paid (Regulation on Charges levied 
by the Customs Authorities, SR 631.035).  
 
 
4 For information see the "Fact sheet on the provision of assistance by the Federal Customs 
Administration in the sphere of intellectual property rights" under:  
http://www.ezv.admin.ch/zollinfo_firmen/04202/04284/04299/index.html?lang=en . IP/N/6/CHE/3  
 
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  Once the application has been examined and found valid, the Customs Author ities may hold the 
goods in question for up to ten working days from the date of the notification. In duly substantiated 
cases, the Customs Authorities may hold the goods for a further ten days maximum. The holding 
and the notification costs at least CHF 5 0. 
 
During this time, the applicant must obtain provisional measures from a civil judge. Failing this, 
the goods are immediately released.  
 
18.  Are competent authorities required to act upon their own initiative and, if so, in what  
circumstances? Are ther e any special provisions applicable to ex officio action?  
 
The Customs Authorities have the authority to draw ex officio the attention of the right holder to 
certain consignments which are suspected of infringing relevant intellectual property rights 
(Article 75 CopA; Article 12 TopoA; Article 70 TmPA; Article 46 DesA; Article 86 a PatA). After the 
notification, the IPR holder has to submit an application to the Customs Authorities within three 
days. If they fail to do so, the goods are released.  
 
19.  Describe the remedies that the competent authorities have the authority to order 
and any criteria  regulating their use.  
 
If the applicant has placed an order of destruction, the Customs Authorities will notify the person 
entitled to dispose of the goods ac cordingly. Customs Authorities have the authority to destroy the 
counterfeit goods, given either the consent of the person entitled to dispose of the goods or if that 
person does not voice any opposition to their destruction, within ten days after having r eceived 
the notification from the Customs Authorities. Criminal procedures are, at first instance, a matter 
for the Cantonal Authorities (see Article 73(1) CopA; Article 69 TmPA; Article 45 DesA; 
Article  85(1) PatA; Article 51 LPOV Article 27(1) UCA).  
 
 
Criminal Procedures  
20.  Specify the courts which have jurisdiction over criminal acts of infringement of IPRs.  
 
Criminal proceedings are regulated under federal legislation. The Swiss Criminal Procedure Code 
(CrimPC) governs the prosecution and adjudicati on by the federal and cantonal criminal justice 
authorities of offences under federal law (Article 1(1) CrimPC) unless the special intellectual 
property laws contain specific provisions (see Article 1(2) CrimPC). Each Canton designates for the 
whole of its  territory the authorities responsible for the proceedings and passing of judgment in 
cases of infringement (see Article 14 CrimPC). If there is a breach of federal law, appeals on a 
point of law against the cantonal judgments may be made to the Federal Su preme Court 
(Articles  80 and 95 FSCA).  
 
The competent authority for conducting the proceedings and passing judgment on an IPR 
infringement is the authority located in the place in which the infringer acted. If only the place in  
which the result occurred is  in Switzerland, the competent authority is the one which has 
jurisdiction over that place (see Article 31(1) CrimPC). With regard to patents, the law allows the 
plaintiff to choose between the place in which the perpetrator acted and that in which the res ult 
occurred (see Article 84(1) PatA). If the perpetrator acted or the result occurred in different places, 
the competent authority is that of the place in which the first investigation was initiated (see 
Article  31(2) CrimPC). If the infringement was comm itted abroad or it is not possible to determine 
where it was committed, the competent authority is that of the place in which the perpetrator of 
the infringement resides (see Article 32(1) CrimPC). If the perpetrator of the infringement does 
not reside in Switzerland, the authorities at their place of origin have jurisdiction; in the absence 
of a place of origin, the authorities of the place where the perpetrator of the infringement was 
found have jurisdiction.  
 
21.  In respect of which infringements of whi ch intellectual property rights are criminal 
procedures and penalties available?  
 
Swiss law provides for criminal law protection against infringements of all intellectual property 
rights and not only against the counterfeiting of trademarks and copyright piracy, as provided for IP/N/6/CHE/3  
 
- 21 - 
 
  in Article 61 of the TRIPS Agreement. Criminal procedures and penalties are available in respect 
of the following infringements:  
 
- According to Articles 67 et se q. and 70 CopA, the following offences are punishable if 
committed intentionally and unlawfully: using a work under a false name or one which is 
different from that decided on by the person responsible for the work; divulging a work; 
modifying a work; usin g a work to create a derivative work; making copies of a work, 
irrespective of the technique used; offering to the public, disposing of or in some other way 
putting into circulation copies of a work; reciting, representing or performing a work, directly 
or irrespective of the technique used, or showing or playing it in a place other than that in 
which it was presented; to make a work accessible so that other persons at any time or 
place of their own choice can access it; broadcasting a work by radio, televi sion or similar 
means, either by radio relay, cable or other conductors or retransmitting it by technical 
means the use of which does not fall within the remit of the original broadcasting authority; 
showing or playing a broadcast work, a retransmitted wor k or a work, which has been made 
accessible; refusing to declare to the competent authorities the source of the copies of works 
in the possession of the person concerned which were made or put into circulation unlawfully 
and refusing to name the addressees  and the extent of a distribution to commercial 
customers; renting out software; omitting to mention, in those cases prescribed by law 
(Articles 25 and 28), the source used and, if so designated therein, the author; asserting 
copyright the management of wh ich is placed under federal supervision (see Article 40 
CopA).  
 
- According to Articles 69 et seq . CopA, the following offences are punishable if committed 
intentionally and unlawfully: broadcasting by radio, television or similar means or by radio 
relay, cable or other conductors a performance by an entertainer; making sound or video 
recordings of a performance or recording it on some other data medium; offering to the 
public, disposing of or in some other way putting into circulation copies of a performan ce; 
retransmitting a performance by technical means the use of which does not fall within the 
remit of the original broadcasting body; showing or playing a broadcast or retransmitted 
performance or a performance which has been made accessible; using a perf ormance under 
a false name or a name other than the performer's name; reproducing performances, sound 
or video recordings in a way that other persons at any time or place of their own choice can 
access it; reproducing a sound or video recording or offering  to the public, disposing of or in 
some other way putting into circulation the reproduced copies; retransmitting a broadcast; 
making sound or video recordings of a broadcast or recording it on some other data medium; 
reproducing a broadcast recorded on a s ound recording, video recording or another data 
medium or putting into circulation such copies; refusing to declare to the competent 
authorities the source and the quantity of a medium on which a performance protected under 
related rights pursuant to Artic les 33, 36 or 37 of the CopA is recorded and which has been 
made or put into circulation unlawfully and is in the possession of the person concerned and 
refusing to name the addressees and the extent of a distribution to commercial customers.  
 
- According to Article 69 a CopA, the following offences are punishable if committed 
intentionally and unlawfully:  
 
• circumventing effective technological measures under Article  39a(2) to undertake a 
statutory unlawful use of works or other objects of protect ion;  
• manufacturing,  importing, offering, selling, or otherwise distributing, lending, entrusting 
or advertising for use or possessing for commercial purposes devices, products or parts, 
or providing services which:  
 
1. are the subject of a sales promotion, a dvertisement or commercial activity 
aiming at circumventing effective technological measures ; 
2. have only a limited economic purpose or use other than the circumvention of 
effective technological measures ; or 
3. are primarily designed, manufactured, adapted, o r provided to  make 
circumvention of effective technological measures possible or easier;   
 
• removing or modifying digital information for the exploitation of copyright and related 
rights under Article 39c(2);  IP/N/6/CHE/3  
 
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  • reproducing, importing,  offering, selling or otherwise distributing, broadcasting or 
making perceivable or accessible works or other objects of protection on which the digital 
information for the exploitation of rights under Article 39c(2) has been removed or 
altered.  
 
- According to Article 11 of the TopoA, the following offences are punishable if committed 
intentionally and unlawfully: copying a topography, irrespective of the means used and the 
form which the copy takes; offering to the public, disposing of, renting out , lending or putting 
into circulation in some other way a topography or importing it for such purposes; refusing 
to declare to the competent authorities the source of the items which were produced or put 
into circulation illegally and which are in the poss ession of the person concerned.  
 
- According to Articles 61 et seq . of the TmPA, the following offences are punishable if 
committed intentionally: infringing someone else's rights to trademarks, by usurping, 
counterfeiting or copying those trademarks or us ing the usurped, counterfeit or copied 
trade marks  to offer products or put them into circulation, offer or provide services or for 
advertising purposes, import, export or putting into transit; refusing to state the source and 
the quantity of the items on w hich a usurped, counterfeit or copied trademark has been 
affixed and which are in the possession of the person concerned and refusing to name the 
addressees and the extent of a distribution to commercial customers; illegally naming 
products or services wit h the trademark of a third party with a view to deceiving others, thus 
leading them to believe that the products or services are original; offering or putting into 
circulation as originals products illegally named using a third party's trademark; offering or 
providing as originals services named using a third party's trademark; using a guarantee 
mark or a collective mark in such a way as to contravene the provisions of the regulation or 
refusing to state the source of the items on which a usurped, counterfe it or copied trademark 
has been affixed and which are in the possession of the person concerned.  
 
- According to Articles 64 et seq . of the TmPA, the following offences are punishable if 
committed intentionally: using an inaccurate indication of source or designation of origin; 
creating a risk of deception by using a name, company name, address or trademark in 
connection with products or services from another source; contravening the requirements 
relating to the manufacturer's identification mark.  
 
- Accord ing to Article 172 of the Federal Act on Agriculture (SR 910.1), the following offence 
is punishable: intentionally using a n appellation of origin or a protected geographical 
indication illegally (i.e. one which has been registered in respect of agricultural and 
processed agricultural products).  
 
- According to Article 41 of the DesA, the following offences are punishable if committed 
intentionally: using unlawfully a registered design; colluding in the offences referred to or 
encouraging or facil itating the perpetration of those offences; refusing to declare to the 
competent authority the source and the quantity of articles in one's possession which are 
counterfeit and refusing to name the addressees and the extent of a distribution to 
commercial customer.  
 
- According to Articles 66 and 81 et seq . of the PatA, the following offences are punishable if 
committed intentionally and unlawfully: using a patented invention (copying is regarded as 
using); refusing to declare to the competent authority the  source and the quantity of the 
products in one's possession which have been manufactured illegally and refusing to name 
the addressees and the extent of distribution to commercial customers; removing the patent 
mark on a product or its packaging without t he consent of the patent holder or licensee; 
incitement to commit one of the acts referred to, collaborating in, encouraging or facilitating 
the perpetration of such acts; disclosing wrong information concerning the genetic resources 
or traditional knowled ge of indigenous people as described in Article 49 a PatA; putting up 
for sale or bringing into circulation one's commercial documents, advertisements of any kind, 
products or goods bearing particulars designed to lead people to believe, wrongly, that the 
products or goods are protected by the PatA.  
 
- According to Articles 48 et seq . of the LPOV, the following offences are punishable: 
intentionally and unlawfully acting in breach of the conditions of Article 5 LPOV; making 
statements in advertising, in one' s business documents or when marketing products which IP/N/6/CHE/3  
 
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  may lead people to believe, wrongly, that the product in question is protected; omitting to 
use the name of the variety if making a business out of selling the material for propagating 
a protected varie ty; using in respect of another variety of the same botanical species or a 
similar species in one's business activities the varietal name of a protected variety or a name 
leading to confusion with that name; infringing in any other way the LPOV or the rele vant 
implementing requirements.  
 
- According to Article 23 UCA, the following offence is punishable: intentionally engaging in 
unfair competition within the meaning of Article 3 UCA (unfair advertising and sales 
techniques and other illegal practices), Art icle 4 UCA (incitement to breach or terminate a 
contract), Article 4 a UCA (to bribe someone or to accept a bribe) , Article 5 UCA (exploiting 
someone else's work) or Article 6 UCA (infringing industrial or business secrets).  
 
- According to Article s 28 et seq. of the CAPA, the following offences are punishable if 
committed wilfully and unlawfully: affixing domestic or foreign public signs protected under 
the Act or signs that could be confused with them to items, or selling, making available, 
importing, expo rting or carrying in transit or otherwise placing items marked in this way on 
the market; using those signs on office signs, in advertisements, prospectuses, business 
papers, internet sites or the like; using those signs for services or advertising service s with 
such signs; using an official designation or a designation that could be confused with it; 
using a domestic or foreign national figurative or word design.  
 
- According to Article 162 of the SCC, the following offence is punishable: disclosing an 
industrial or commercial secret which once was under a statutory or contractual obligation 
to keep; the same applies to using such disclosure for one's own benefit or the benefit of a 
third party.  
 
- According to Article 320 of the SCC, the following offence is punishable: disclosing a secret 
confided to one in one's capacity as a member of an authority or as an official or which has 
come to one's notice as a result of one's office or employment . (N.B. This general rule of the 
criminal co de is also reflected in numerous intellectual property laws and regulations .) 
 
22.  Which public authorities are responsible for initiating criminal proceedings? Are they 
required  to do this on their own initiative and/or in response to complaints?  
 
With r egard to IPR infringements, the proceedings and passing of judgment concerning breaches 
of criminal law are a matter for the cantonal authorities (see Article 73(1) CopA; Article  69 TmPA; 
Article 45 DesA; Article 85(1) PatA; Article 51 LPOV; Article 27(1)  UCA; Article  31(1) CAPA). In all 
Cantons, it is the police authorities and the public prosecutors who are responsible for initiating 
criminal proceedings. The public prosecutors direct the police investigations.  
 
Under intellectual property law criminal pr oceedings require, as a rule, a complaint from the injured 
party (Articles 67(1), 68 and 69(1), Article 69a(1) CopA; Article 11(1) TopoA; Article s 61(1) and 
(2), 62(1), 63(1) and (2) TmPA; Article 41(1) DesA; Article 81(1) PatA; Article 48 LPOV; Article  23 
UCA). However, if the perpetrator of the offence is acting in a professional capacity/at commercial 
scale, public authorities may initiate proceedings " ex officio " (Article 67(2), Article  69(2), 
Article  69a(2) and Article 70 CopA; Article 11(2) TopoA; Art icle 61(3), Article 62(2), Article 63(4), 
Article s 64(2) and 65 TmPA; Article 41(2) DesA; Article 81(3), Article 81 a, Article 82 PatA). 
Regarding the use of an incorrect indication of source, or a public sign (like the Swiss Coat of Arms 
for instance), pub lic authorities may initiate proceedings " ex officio " even without the perpetrator 
acting in a professional capacity/at commercial scale (Article 64(1) TmPA; Article 28 CAPA).  
 
Furthermore, the Swiss Federal Institute of Intellectual Property may file a complaint with the  
competent authority and exercise the rights of a private claimant in proceedings, as far as the use 
of an incorrect indication of source (Article 64(3) TmPA) or the unlawful use of public signs 
(Article  31(2) CAPA) is concerned.  
 
23.  Do private persons have standing to initiate criminal proceedings and, if so, who?  
 
Under intellectual property law criminal proceedings require, in most cases, a complaint from the 
injured party. Consequently, private individuals are able to initiate crimin al proceedings. Any 
injured person may lodge a complaint. If the injured party does not exercise their civil rights, their IP/N/6/CHE/3  
 
- 24 - 
 
  legal representative will be entitled to lodge a complaint. If they are in the care of a guardian, it is 
the tutelary authority which  will be entitled to lodge a complaint. If the injured party is over the 
age of 18 and capable of understanding, they will also be entitled to lodge a complaint. If they die 
without lodging a complaint or having expressly renounced the right to do so, their right will pass 
on to each of their close relatives (see Article 30 SCC).  
 
24.  Specify, by category of IPR and type of infringement where necessary, the penalties 
and other remedies that may be imposed:  
 
-  imprisonment;  
 
-  monetary fines;  
 
- seizure, forfeiture and destruction of infringing goods and materials and implements 
for their production;  
 
- other.  
 
Swiss law provides for the following penalties: custodial sentence, monetary penalty and fine. The 
monetary penalty amounts to a number o f daily penalty units at a certain amount. The court 
decides on the number of the penalty units according to the culpability of the offender, but no 
more than 360 daily penalty units in total. The court decides on the value of the daily penalty unit 
accord ing to the personal and financial circumstances of the offender at the time of conviction, but 
not higher than CHF 3,000 (Article 34 SCC). The highest monetary penalty is therefore 
CHF 1,080,000 (360 (daily penalty units) x CHF 3,000). Unless a special IPR  law provides 
otherwise, the highest amount of a fine is CHF 10,000 (Article 106 SCC).  
 
- For breaches of copyrights (Article 67 CopA) and related rights (Article 69 CopA), as well as 
infringements of the provisions regarding the protection of topographies  (Article 11  TopoA), 
a custodial sentence of up to one year or a monetary penalty may be applied. If the 
perpetrator of the offence is acting in a professional capacity, the penalty will be a custodial 
sentence of up to five years or a monetary penalty.  
 
- For intentionally failing to mention the source used by whoever is legally required to do so 
or by the author if they are  designated to do so (Article 68 CopA), a fine is applicable.  
 
- For intentionally violating the technical protection measures or digital information for the 
exploitation of copyright (Article 69 a CopA), a fine is applicable. If the perpetrator of the 
offence is acting in a professional capacity, the penalty will be a custodial sentence of up to 
one year or a monetary penalty.  
 
- For unlawful enforcement of rights that can only be enforced with an authori zation granted 
by federal authorities (Article 70 CopA ), a fine is applicable.  
 
- For an infringement of the right to a trademark (Article 61 TmPA), for fraudulent use of a 
tradema rk (Article 62 TmPA), for improperly using a guarantee or collective mark (Article  63 
TmPA), and for the incorrect use of an indication of source or a protected designation of 
origin or geographical indication for a non -agricultural product (Article 64 TmP A), a custodial 
sentence of up to one year or a monetary penalty may be applied. If the perpetrator of the 
offence is acting in a professional capacity, the penalty will be a custodial sentence for up to 
five years and a monetary penalty.  
 
- For the illega l use of a protected designation of origin or geographical indication for an 
agricultural product, a custodial sentence of up to one year or a monetary penalty 
(Article  172 of the Federal Act on Agriculture) is applicable. If the perpetrator of the offence  
is acting in a professional capacity, the penalty will be a custodial sentence of up to five 
years or a monetary penalty.  
 
- For infringements relating to the producer's identification mark (Article 65 TmPA), a fine of 
up to CHF 20,000 may be applicable.  
 IP/N/6/CHE/3  
 
- 25 - 
 
  - For the unlawful use of public signs (Article 28 CAPA), a custodial sentence not exceeding 
one year or a monetary penalty may be applied. If the perpetrator acts for commercial gain, 
the penalty will be a custodial sentence of up to five years or a mone tary penalty.  
 
- For infringing the provisions governing the protection of industrial designs (see Article 41 
DesA), a custodial sentence of up to one year or a monetary penalty may be applied. If the 
perpetrator of the offence is acting in a professional capacity, the penalty will be a custodial 
sentence of up to five years and a monetary penalty.  
 
- For infringing the provisions governing the protection of the rights to a patented invention 
(see Article 66 PatA), a custodial sentence of up to one year or a monetary penalty may be 
applied (Article 81(1) PatA). If the perpetrator of the offence is acting in a professional 
capacity, the penalty will be a custodial sentence of up to five years and a monetary penalty.  
 
- For disclosing wrong information about g enetic resources and traditional knowledge 
(Article  81a PatA), a fine of up to CHF 100,000 may be applied.  
 
- Anyone who offers for sale or brings into circulation their commercial documents, 
advertisements of any kind, products or goods bearing particular s which lead people to 
believe, wrongly, that the products or goods are protected by the PatA, will be fined 
(Article  82(1) PatA).  
 
- For infringement of the provisions regarding the protection of plant varieties (Article 48 
LPOV), a custodial sentence of up to one year or a monetary penalty can be applied. If the 
perpetrator of the offence is acting negligently, the penalty will be a fine (Article 48(2) LPOV).  
 
- For misleading advertising and other offences (Article 49 LPOV), a fine is applica ble. 
 
- For unfair competition (Article 23 UCA), a custodial sentence of up to three years or a 
monetary penalty is applicable.  
 
Swiss law also provides for other remedies. For instance:  
 
- A judge may order the seizure or confiscation of items and instruments which have been or 
were to be used in committing an IPR infringement or which are the result of an infringement, 
and of tools and other resources intended primarily for manufacturing these products 
(Article  69 CP; Article 68 TmPA; conversely Ar ticle 72 CopA; Article 44 DesA; Article 69(1) 
PatA; Article 50 LPOV; Article 30 CAPA). A judge may order that the confiscated items or 
products be rendered unfit for use or destroyed (Article 69(2) SCC; Article 69(1) PatA). Once 
they have been completed, w orks of architecture may not be confiscated (Article 72 CopA).  
 
- If, as a result of a misdemeanour or felony, a person suffers damage which is not covered 
by any insurance and the offender is not expected to indemnify the injured party, the judge 
awards t he injured party, at its request, up to the amount of the damage found by the courts 
or by agreement with the injured party (Article 73 SCC):  
 
(a) the amount of the monetary penalty or fine paid by the convicted person;  
(b) the items and assets which have been confiscated or the proceeds of liquidating them, 
after deduction of expenses;  
(c) the claims for compensation;  
(d) the amount of the precautionary guarantee.  
 
- If the public interest or that of the injured party so requires, the judge may order the 
publication of the criminal judgment in one or more newspapers at the expense of the 
convicted person (see Article 68(1) SCC; Articles 70 and 82(2) PatA).  
 
- Where a misdemeanour or felony has been committed in the exercise of a professional, 
industria l or commercial activity and the offender has, because of this offence, received a 
custodial sentence of more than six months or a monetary penalty of more than 180 daily 
units, the judge may, if there is reason to fear further abuses, prohibit the convict ed person 
from carrying out that professional, industrial or commercial activity for a period of between 
six months and five years (Article 67(1) SCC).  IP/N/6/CHE/3  
 
- 26 - 
 
   
25.  Describe provisions governing the length and any cost of proceedings. Provide any 
available data o n the actual duration of proceedings and their cost, if any.  
 
The application of criminal law in intellectual property matters is exclusively a matter for the 
Cantons (Articles 22 and 23 CrimPC).  
 
The criminal justice authorities are obliged to commence criminal proceedings immediately and 
conclude them without unjustified delay (Article 5 CrimPC). In practice, the prosecution authorities 
are overburdened and prioriti ze the prosecution of the most serious offences. Mention should also 
be made of the principle of promptness, deduced from Articles 29 Cst and 6 ECHR, covering a 
particular kind of formal miscarriage of justice and violation of the right to be given a hearing.  
 
If applicable, the cost of the proceedings is governed by Article s 416 et seq. CrimPC. The expenses 
and costs are normally borne by the losing party. No statistical data are available on the actual 
duration or cost of the proceedings.  
 
 
__________  