SWITZERLAND Law and Practice Contributed by: Peter Schramm, Timmy Pielmeier, Michael Ritscher and Andrea Schäffler, MLL Legal
5.4 Opposition or Revocation/ Cancellation Procedure
Federal Administrative Court is the court of last instance for decisions in opposition proceed - ings: an appeal to the Swiss Supreme Court is excluded by law. 5.3 Ability to File an Opposition or Revocation/Cancellation For the initiation of opposition proceedings (and court proceedings), there is, in principle, no mandatory requirement to be represented by an attorney in Switzerland. However, it follows from the procedural rules under trade mark law that the applicant must at least have an address for service in Switzerland, and mandated attor - neys in Switzerland ensure such. For the material requirements to initiate such proceedings, see 5.2 Legal Grounds for Filing an Opposition or Cancellation . The opposition fee, as defined by the IPI, cur - rently amounts to CHF800. If legal representa - tion is mandated, costs for the respective attor - ney fees incur separately. The attorney costs usually vary depending on the complexity of the opposition proceedings. However, with the deci - sion of the IPI on the opposition, the IPI shall determine whether and to what extent the costs of the successful party shall be compensated by the other party. Any natural or legal person may file an application for cancellation of a trade mark on the grounds of non-use. A legal interest is not required to initi - ate trade mark cancellation proceedings before the IPI. To invoke absolute or relative grounds for refusal in civil proceedings (civil action for annulment), the plaintiff must demonstrate an individual interest. Such interest can be demon - strated by the application for protection or use of a similar trade mark, for example.
The opposition proceeding must be initiated in writing within three months. From this point on, the formal opposition is filed with the IPI. The IPI subsequently carries out an examination and, in this context, evaluates the identification of the opponent, the register or application number of the relevant trade marks, and the legal scope and grounds of the opposition. In addition, the IPI checks whether the required opposition fee has been paid by the opponent in due time. If all requirements are met, the IPI sets a time limit for the counterparty to submit a written response. The counterparty’s statement is usu - ally not followed by a second exchange of cor - respondence. The opposition proceedings are exclusively conducted in writing and are termi - nated at the latest after the second exchange of correspondence by means of a decision of the IPI, resulting in rejection or approval. In summary, it has to be noted that opposition proceedings offer an alternative to regular court proceedings and, therefore, allow the owner of an earlier trade mark to enforce its exclusive right towards the applicant of a later mark in a relatively simple way. However, this also means that only limited legal grounds can be raised in such opposition proceedings (only relative grounds for refusal) and they cannot replace regular court proceedings. Cancellation proceedings may be initiated either before the IPI due to non-use of a trade mark or by initiating opposition proceedings within three months after publication in the trade mark regis - ter. Alternatively, the cancellation of a trade mark requires a final civil court decision holding that a respective trade mark must be cancelled based on legal grounds such as absolute or relative
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