SWITZERLAND Law and Practice Contributed by: Peter Schramm, Timmy Pielmeier, Michael Ritscher and Andrea Schäffler, MLL Legal
10.3 Attorneys’ Fees and Costs The costs for litigation consist of attorneys’ fees and court costs. Court costs are calcu - lated based on the value in litigation, which is set in the claim and in a potential counter - claim 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 beforehand. 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 proceedings. 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 spe - cial 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 con - sidered given, in particular, if there is a risk that the opposing party will make it impossible for the claimant to realise its rights. In those ex parte interim measures, the parties will be summoned to a hearing, or the opposing party will be asked to submit a written state - ment. This way, the right to be heard at a cer - tain stage during the proceedings is sufficiently granted to the opposing party. Also see 10.1 Injunctive Remedies .
10.5 Customs Seizures of Counterfeits or Parallel Imports The Federal Customs Administration is author - ised to withhold infringing goods upon request of the trade mark owner or on its own accord. Within ten days after notification of the withhold - ing of potentially infringing goods (extendable by another ten days), the trade mark owner must obtain an injunction from a civil court or a seizure order from a criminal prosecution authority, or must obtain the approval of the goods’ owner for the destruction of the withheld goods. Swiss law does not provide any special provi - sions concerning the appellate procedure for civil trade mark proceedings and, therefore, such proceedings follow the regular civil procedure rules. Decisions of civil courts on trade mark or copyright infringements (sole cantonal instances are appointed as first instance in both cases) can be appealed to the Swiss Federal Supreme Court. Consequently, Switzerland provides only two instances in civil IP proceedings. 11. Appeal 11.1 Appellate Procedure The Federal Supreme Court primarily judges violations of the law. A review of the determina - tion of the facts is only possible in exceptional cases, which means that the lower court’s deter - mination of the facts is binding for the Federal Supreme Court. An incorrect determination of the facts may only be asserted if it is: • obviously incorrect; or • based on a violation of the law. In both cases, it would have to be further shown that the rectification of the defect may be deci - sive for the outcome of the proceedings.
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