SWITZERLAND Law and Practice Contributed by: Peter Schramm, Timmy Pielmeier, Michael Ritscher and Andrea Schäffler, MLL Legal
7.4 Prerequisites and Restrictions to Filing a Lawsuit There are no prerequisites with regard to filing a law - suit, such as prior mediation, conciliation attempts, submission of C&D letters, etc (Article 197 et seq of the Swiss Civil Procedure Code). Unfair competition law prohibits misleading and abu - sive threats, including misleading warning letters. For example, a warning letter might be considered an act of unfair competition if the originator has serious doubts about the accuracy of the infringement accu - sation. It must be noted that the receipt of a warning letter usually entitles the recipient to bring a negative declaratory action against the originator (declaring non-protection and/or non-infringement). 7.5 Lawsuit Procedure Due to the specific subject matter of intellectual prop - erty law, the legislature has provided for a cantonal court authority to handle trade mark and copyright disputes, among other things (Article 5, paragraph 1 lit a of the Swiss Civil Procedure Code). The respec - tive court in this connection is usually either the high - er court of the canton concerned or, if available, the commercial court of the canton in which such a court exists (currently the cantons of Zurich, St. Gallen, Berne and Aargau). In order to initiate litigation, whether preliminary or regular proceedings, a statement of claim must be filed with the competent court. The statement of claim shall include, inter alia, the statement of value in dis - pute, the allegations of fact, and notice of evidence offered for each allegation of fact. Accordingly, the statement of claim must specify the claims asserted, provide detailed facts and present the grounds on which these claims are based. In general, IP proceed - ings follow the applicable standard civil procedure rules as applicable to non-intellectual property civil proceedings. Decisions on trade mark and copyright disputes can be appealed to the Federal Supreme Court. Thus, Swiss law follows a system of two instances with respect to civil claims regarding intellectual property rights.
While representation by a lawyer is not mandatory in IP civil law proceedings in Switzerland, such repre - sentation is imperative for both plaintiffs and defend - ants. Pre-procedural costs – such as for legal advice, drafting and filing a C&D letter and potential settle - ment negotiations – vary widely, depending on many factors. Such costs roughly range from CHF1,000 to CHF10,000. Foreign rights owners can bring IP claims in Switzer - land, as they enjoy trade mark or copyright protec - tion under Swiss law. Trade mark claims consequently require a Swiss registered trade mark or a famous for - eign mark, in accordance with Article 6bis of the Paris Convention. As copyright is an unregistered right free of formalities in Switzerland, corresponding claims exist independently from any registration. 7.6 Declaratory Judgment Proceedings and Other Protections for Potential Defendants As a general rule, any person who can demonstrate a legal interest may apply to the court for a declaratory judgment as to whether or not a right or legal relation - ship governed by the Swiss Trade Mark Protection Act or the Swiss Copyright Act exists. Receipt of a warn - ing letter alleging trade mark or copyright infringement constitutes such legal interest to apply for a declara - tory judgment stating non-protection (invalidity) or non-infringement. A potential defendant can file protective briefs under Article 270 of the Swiss Civil Law Code. Protective briefs are valid for a period of six months after submis - sion and must be considered by the competent courts in preliminary injunction proceedings. The purpose of such briefs is to ensure a fair hearing of the factual and legal submissions of potential defendants in urgent cases where the court might grant an interim injunc - tion without a prior hearing. 7.7 Small Claims Switzerland does not provide a general dispute res - olution option in IP matters, such as the European Union does, for example (EUIPO Mediation Centre). There is, however, a sector-specific Institution for IT and Data Dispute Resolution (ITDR).
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