SWITZERLAND Law and Practice Contributed by: Peter Schramm, Timmy Pielmeier, Michael Ritscher and Andrea Schäffler, MLL Legal
hearing the other party. The conditions for special urgency are that: • a delay to the injunction would likely cause irrepa - rable harm to the claimant; • the claimant acts immediately without delay after acquiring knowledge of the infringement (generally within a few days); or • the claim/enforcement might be frustrated if the opposing party is notified. Other Preliminary Measures Any person requesting preliminary measures may, in particular, request that the court orders measures to: • secure evidence; • establish the origin of items unlawfully bearing a trade mark or indication of source; • preserve the existing state of affairs; and • provisionally enforce claims for injunctive relief and remedy the freezing of assets such as bank accounts. The Swiss Civil Procedure Code (Articles 261–262) grants extensive discretion to the judge in deciding on the specific measure, the scope of the measure and the option granted to the opponent to prevent the preliminary measures by providing a security deposit. 10.2 Monetary Remedies Different remedies can alternatively be awarded to trade mark and copyright owners in main infringe - ment proceedings. Unlike in preliminary proceedings, judges do not have discretion in ordering remedies but are strictly bound to the procedural claims invoked by the claimant. The following options exist. • Trade mark or copyright owners may claim actual damages in terms of the amount of involuntary reduction in net capital caused by the infringement (eg, lost profit). The damage is determined by com - paring the actual and the hypothetical economic position without infringement. Such damage is hard to prove. • The infringer’s actual profits generated by the unjust use of the claimant’s intellectual property can be claimed as damage.
• A hypothetical licence/reasonable royalty fee can be awarded as damages. Such claims require proof of past licence agreements conducted by the claimant regarding the trade mark or copyright in question. • Swiss law does not provide for enhanced damages for wilful acts or punitive damages. However, in case of wilful acts, statutory criminal offences may apply. Copyright is an informal, unregistered right in Switzer - land, and therefore no registration is required to claim damages. Unregistered trade mark rights do not exist in Switzerland, so in this case registration is a prereq - uisite for the existence of the right itself and therefore for claims for damages. 10.3 Attorneys’ Fees and Costs The costs for litigation consist of attorneys’ fees and court costs. Court costs are calculated based on the value in litigation, which is set in the claim and in a potential counterclaim by the parties. Before trial, the claimant is obliged to make an advance payment for the estimated court costs calculated by the court. As the courts generally publish schedules for the court costs, the parties can estimate those costs before - hand. The attorneys’ fees are generally set by the attorneys and the parties on a private basis, and depend on the complexity and length of the preparation and pro - ceedings. The prevailing party is entitled to recover the court costs and part of its attorneys’ fees from the losing party. In the case of a partial decision (eg, the claim is partially unsuccessful), the court will split these costs and fees accordingly between the parties. 10.4 Ex Parte Relief In general, notice is required. In cases of special urgency only, and in particular where there is a risk that the enforcement of the measure will be frustrated, the court may order the interim measure immediately and without hearing the opposing party (Article 265 of the Swiss Civil Procedure Code). Special urgency may be considered given, in particular, if there is a risk that the opposing party will make it impossible for the claimant to realise its rights.
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