SWITZERLAND Law and Practice Contributed by: Peter Schramm, Timmy Pielmeier, Michael Ritscher and Andrea Schäffler, MLL Legal
7.6 Declaratory Judgment Proceedings and Other Protections for Potential Defendants As a general rule, any person who can demon - strate a legal interest may apply to the court for a declaratory judgment as to whether or not a right or legal relationship governed by the Swiss Trade Mark Protection Act or the Swiss Copyright Act exists. Receipt of a warning letter alleging trade mark or copyright infringement constitutes such legal interest to apply for a declaratory judg - ment 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 submission and must be consid - ered 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 injunction without a prior hearing. 7.7 Small Claims Switzerland does not provide a general dispute resolution option in IP matters, such as the Euro - pean Union does, for example (EUIPO Media - tion Centre). There is, however, a sector-specific Institution for IT and Data Dispute Resolution (ITDR), available at www.itdr.ch/en. 7.8 Effect of Trade Mark and Copyright Office Decisions The IPI has certain competencies in the field of administrative law. It conducts the trade mark registration examination process and, provid - ed proceedings are initiated, co-ordinates and decides oppositions that may be filed by earlier trade mark right-holders and cancellation pro - ceedings based on alleged non-use.
IPI proceedings are purely administrative. The proceedings are concluded by a decision of the IPI (ie, approval or rejection), but the judgment has no substantive legal force. Accordingly, in the event of a rejection of the IPI following the opposition proceedings, for example, the opposing party still has the option of initiating regular court proceedings before a civil court. If the opposition is upheld by the IPI, the other party has the option to sue for negative declara - tory judgment in civil court proceedings. Hence, the final decision on the admissibility of a trade mark ultimately rests with the competent civil court. Moreover, even during ongoing opposition pro - ceedings before the IPI, there is always the possibility, from the point of view of both parties involved, to initiate parallel proceedings before a competent civil court. In this case, the oppo - sition proceedings before the IPI must be sus - pended accordingly and the decision from the civil court proceedings must be awaited. 7.9 Counterfeiting and Bootlegging Since counterfeits have enormous potential to cause damages to owners of IP, Swiss trade mark and copyright laws explicitly prohibit any manufacture and/or sale of counterfeits. The Swiss Trade Mark Protection Act prohibits not only the unauthorised imitation of protected products (by trade mark law) and the trade of these counterfeits, but also their import, export or transit through Switzerland. The Swiss Customs Administration has been given the appropriate powers to enforce these regulations. If Customs finds counterfeit goods in tourists’ luggage, for example, or in parcels sent by the post office, Customs is entitled to detain and destroy such goods. The Swiss Cus - toms Administration will also inform the right-
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