SWITZERLAND Law and Practice Contributed by: Peter Schramm, Timmy Pielmeier, Michael Ritscher and Andrea Schäffler, MLL Legal
a matter of discretionary decision-making. The higher the degree of similarity of the older mark, the more likely the court must assume a likeli - hood of confusion. Trade mark infringement is determined by com - paring the overall impression of the earlier work and the potentially infringing creation (Articles 10 and 11 of the Swiss Copyright Act). All crea - tions that represent the individual character of the original work fall within the scope of protec - tion and are therefore infringing. 7.4 Prerequisites and Restrictions to Filing a Lawsuit There are no prerequisites with regard to filing a lawsuit, 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 abusive 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 accu - racy of the infringement accusation. It must be noted that the receipt of a warning letter usually entitles the recipient to bring a negative declara - tory action against the originator (declaring non- protection and/or non-infringement). 7.5 Lawsuit Procedure Due to the specific subject matter of intellec - tual property law, the legislature has provided for a cantonal court authority to handle, among other things, trade mark and copyright disputes (Article 5, paragraph 1 lit a of the Swiss Civil Procedure Code). The respective court in this connection is usually either the higher court of the canton concerned or, if available, the com - mercial court of the canton in which such a court
exists (currently the cantons of Zurich, St. Gal - len, Berne and Aargau). In order to initiate litigation, whether prelimi - nary 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 dispute, the allega - tions of fact, and notice of evidence offered for each allegation of fact. Accordingly, the state - ment of claim must specify the claims asserted, provide detailed facts and present the grounds on which these claims are based. In general, IP proceedings follow the applicable standard civil procedure rules as applicable to non-intellectual property civil proceedings. Decisions on trade mark and copyright dis - putes 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 manda - tory in IP civil law proceedings in Switzerland, such representation is imperative for both plain - tiffs and defendants. Pre-procedural costs, such as for legal advice, drafting and filing a C&D let - ter and potential settlement 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 Switzerland, as they enjoy trade mark or copy - right protection under Swiss law. Trade mark claims consequently require a Swiss registered trade mark or a famous foreign mark, in accord - ance with Article 6bis of the Paris Convention. As copyright is an unregistered right free of for - malities in Switzerland, corresponding claims exist independently from any registration.
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