SWITZERLAND Law and Practice Contributed by: Tobias Meili, Damian Schai, André S Berne and Isabel Wahl-Zeller, Wenger Plattner
succeeds only partially, the costs of the court and the attorney’s fees will be split between the parties proportionately. 5.6 Relevance of Claimant/Plaintiff Conduct to Relief The court may deviate from the principles out - lined in 5.5 Legal Costs if, for instance, it con - siders the usual distribution as inequitable due to exceptional circumstances. This may be the case if the plaintiff has made no attempt to find an out-of-court solution with the defendant and the defendant is not resisting the action. The regulations governing pharmaceutical trade - marks consist of the overarching provisions out - lined in the Federal Trademarks Act (TmPA) and are supplemented by the guidance documents “Medicinal Product Names” by Swissmedic. Trade mark disputes occur quite frequently in the pharmaceutical sector in Switzerland. Pharmaceutical product trademarks are required to obtain Swissmedic approval. In its evaluation, Swissmedic does not consider the status of the trademark. Swissmedic is solely responsible for ensuring that the nomenclature of a prod - uct does not evoke any confusion with another product, that the name does not convey any incorrect or misleading information concerning the product’s indications, quality, risks, or safety, and that it does not encourage improper usage or abuse. 6.2 Copyright Copyright law in Switzerland is primarily regulat - ed by the Federal Copyright Act (CopA). Copy - 6. Other IP Rights 6.1 Trade Marks
right concerns are rare within the pharmaceutical sector in Switzerland. 6.3 Trade Secrets Switzerland does not have specific legislation on trade secrets. Notwithstanding, numerous laws contain provisions in this regard, such as the: • Federal Act Against Unfair Competition; • Federal Criminal Code; • Federal Data Protection Act; • Code of Obligations (specifically its sections pertaining to corporate law, employment law, and agency law); • Civil Procedure Code; • Code of Penal Procedure; and • Federal Therapeutic Act (TPA) (eg, Article 67(9) TPA). Furthermore, contract parties (eg, in R&D and product development contracts) may design elaborate contractual clauses, including effec - tive enforcement mechanisms, to protect trade secrets. Thus, depending on the specific situa - tion, trade secrets may be protected in accord - ance with the principles of contract law, tort law, or criminal law. 7. Appeal 7.1 Timeframe to Appeal Decision Patent disputes are litigated in the first instance before the Federal Patent Court. Decisions of the Federal Patent Court can be appealed to the FSC. Additional legal conflicts pertaining to intellectual property rights are decided by the competent canton’s high court. In such cases, the plaintiff is free to file a request for concilia - tion with a conciliation authority before filing an action with the canton’s high court. Decisions
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