IP/N/6/CHE/2  
 
12 February 2014  
(14-0842)  Page: 1/25  
Council for Trade-Related Aspects 
of Intellectual Property Rights  Original: English  
 
CHECKLIST OF ISSUES ON ENFORCEMENT1 
UPDATED REPLIES FROM SWITZERLAND2 
Preliminary remarks 
 
The present document is an updated version of the responses of Switzerland to the Checklist of 
issues on enforcement as contained in Document IP/N/6/CHE/1 of 16 October 1997. This revised version of the responses reflects the state of laws and regulations in force in Switzerland on 1 January 2014.  
 
During the past 15 years, the IP Enforcement Syst em in Switzerland has undergone various changes. 
In the year 2000, a comprehensive revision of the Swiss Federal Constitution ('the Constitution') 
came into force. In addition, 2007 saw the Federal Procedure Law change with the merging of all 
federal administrative appeal and arbitrations committees into one Federal Administrative Court. The Swiss system is characterized by federalism and according to Articles 122 and 123 of the 
Constitution, the Confederation has the right to legislate on matters such as intellectual property, 
civil law, civil procedure law, criminal law, and crim inal procedure law.  Until 2011 civil and criminal 
procedure law was vested with the Cantons.  Based on the new rules of the Constitution, the Law on Civil Procedure and the Law on Criminal procedures came into force 1 January 2011. The 
organization of the judicial system and the administration of justice remain with the Cantons. Finally, 
in 2012 the Federal Patent Court started to operate as the court of first instance for actions concerning patents.  
 
The Constitution establishes the Federal Supreme Court under Article 188.  Subject to the conditions of federal law, appeals may be made to the Federa l Supreme Court in response to decisions on IP 
matters from the higher Cantonal Authority, the Federal Patent Court and, in some cases, the 
Federal Administrative Court.  Enforcement of intellectual property rights (IPRs) is governed by federal legislation. The details of 
the relevant laws and regulations (dates of entry into force and amendment, references to the official 
gazettes/compendia in which they were published) can be found in the latest notification of revised IP laws and regulations of Switzerland contained in Document IP/N/1/CHE/5 of 30 October 2013.   
 
For the sake of convenience, the most often referred to Swiss federal laws and regulations relating to intellectual property and IP enforcement can be found in the non-exhaustive  list below. In addition to 
the legislative texts, court decisions and legal opinion also play an important role in the development 
of Swiss law, particularly with regard to the general principles of law.  1. The special intellectual property laws and regulations are: 
 
- the Federal Act on Copyright and Neighbouring Rights (RS 231.1, LDA); - the Ordinance on Copyright and Neighbouring Rights (RS 231.11, ODAu);   
- the Federal Act on the Protection of Topographies of Semi-Conductor Products (RS 231.2, 
LTo); 
- the Ordinance on the Protection of Topographies of Semi-Conductor Products (RS 231.21, 
OTo); 
- the Federal Act on the Protection of Trademarks and Indications of Source (RS 232.11, LPM);   
                                               
1 Document IP/C/5. 
2 This document updates the replies ci rculated in document IP/N/6/CHE/1. IP/N/6/CHE/2 
 
- 2 - 
 
  - the Ordinance on the Protection of Trademarks (RS 232.111, OPM); 
- the Federal Act on Industrial Designs and Models (RS 232.12, LDes);   - the Ordinance on Industrial Designs (RS 232.121, ODes);   - the Federal Act on Patents for Inventions (RS 232.14, LBI);   
- the Ordinance on Patents for Inventions (RS 232.141, OBI);   
- the Federal Act on the Protection of New Plant Varieties (RS 232.16, LPOV);   - the Federal Act on Unfair Competition (RS 241, LCD);   
- the Federal Act on Cartels and Other Restraints to Competition (RS 251, LCart).   
 2. The following laws contain special provisions concerning enforcement and are also applicable to the field of intellectual property:   
 
- the Swiss Civil Procedure Code (RS 272, CPC);   
- the Federal Act on the Federal Civil Procedure (RS 273, PCF); 
- the Swiss Criminal Procedure Code (312.0, CPP); 
- the Federal Act on Administrative  Procedures (RS 172.021, LPA);  
- the Ordinance on Costs and Compensation in respect of Administrative Procedures 
(RS 172.041.0);   
- the Swiss Civil Code (RS 210, CC);   - the Swiss Code of Obligations (RS 220, CO);   - the Swiss Criminal Code (311.0, CP);   
- the Federal Act on the Federal Supreme Court (RS 173.110, LTF);   
- the Federal Act on the Federal Administrative Court (RS 173.32, LTAF) - the Federal Act on the Federal Patent Court (RS 173.41, LTFB) 
- the Federal Act on the free circulation of Lawyers (RS 935.61, LLCA) 
- the Federal Act on Patent Lawyers (RS 935.62, LCBr) - the Ordinance on Patent Lawyers (RS 935.621, OCBr) 
- the Federal Act on the Liability of the Confederation, Members of its Authorities and its 
Officials (RS 170.32, LRCF);   
- the Ordinance relating to the Law on Liability (RS 170.321, Ordinance on Liability);  
- the Ordinance on the Communication of Decisions taken by the Cantonal Authorities in 
Criminal Law Cases (RS 312.3) ;   
- the Regulation on Charges levied by the Customs Authorities (RS 631.035);   
 3. The importance of the Federal Constitution (RS 101) must be emphasized. It was taken as a 
basis by legislators when adopting the laws referred to in paragraphs 1 and 2 above and by the 
courts and legal writers for developing a number of general principles of law, such as legality, equality before the law, good faith and proportionality.   
 
The Swiss Cantons also have their own constitutions, which must be consistent with federal law (Article 51 Cst).    
4. The principle whereby public international law is part of national law is codified in Article 190 
Cst. It states that all the judicial authorities shall apply both federal acts and international law.   
5. In addition to the texts referred to in paragraphs 1, 2 and 3, and the international 
intellectual property agreements such as the TRIPS Agreement, the Berne or Paris Conventions, it should be noted that Switzerland is also a party to international treaties on judicial proceedings, such 
as the Lugano Convention (Convention of 30 October 2007 on Jurisdiction and the Enforcement of 
Judgments in Civil and Commercial Matters; RS 0.275.12) and the Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 (CEDH;  RS 0.101). The latter forms an important basis with regard to certain general principles of law, particularly the right to be given a 
hearing.   
 6. Lastly, it should be noted that Switzerland and the Principality of Liechtenstein form a single 
customs territory by virtue of the Customs Unio n Treaty of 29 March 1923 (RS 0.631.112.514). 
Under the Customs Union Treaty the two countries concluded the bilateral Treaty on Patents on 22 December 1978 (RS 0.232.149.514), whereby the law applicable to the two countries is the Swiss 
Federal Law on Patents (LBI).   
 7. In view of the complexity of the subject and the difficulty of fully reflecting the system, 
Switzerland reserves the right to revise this communication as and when necessary.   IP/N/6/CHE/2 
 
- 3 - 
 
   
Civil and administrative procedures and remedies 
 (a) Civil judicial procedures and remedies 
 
Civil judicial remedies are regulated under federal legislation. The Swiss Civil Procedure Code (CPC) 
governs the proceedings before cantonal authorities for contentious civil matters (Article 1(a) CPC) unless the special intellectual property laws contain specific provisions. 
 
1. Specify the courts which have jurisdiction over IPR infringement cases.  
 1.1 Article 5(1) CPC expressly requires each Canton to designate a single court to be responsible 
throughout its territory for dealing with civil actions concerning intellectual property rights 
irrespective of the sum involved. The same applies concerning the Law on Unfair Competition (LCD) – which contains, inter alia , provisions on industrial or business secrets and on incitement to betray 
these secrets – if the sum involved is higher than SwF (Swiss Francs) 30'000.  The Cantons name 
the responsible Court in their Cantonal Judicial Organisation Acts. For instance, in the Canton of Geneva, the Court of Justice ("Cour de Justice") is the only court competent to determine intellectual 
property matters, while in the Cantons of Zürich and Berne it is the Commercial Court 
("Handelsgericht"). These courts of sole jurisdiction are also the courts of last instance at cantonal level.    
With regard to patents the competent judicial authority is the Federal Patent Court. It decides over 
the existence and the infringement of patents, over the grant of licences, the grant of interim measures and the enforcement of these decisions (Article 26(1) LTFB). The Federal Patent Court 
decides over other civil appeals if they are connected with patents. If, in a civil appeal before a 
Cantonal Court, the question over the invalidity or the infringement of a patent has to be answered before deciding over the case, the Cantonal Court sets a time limit to institute legal proceeding 
before the Federal Patent Court.  The Cantonal Court suspends its proceedings until the Federal 
Patent Court passes a final decision (Article 26(3) LTFB). The procedure before the Federal Patent Court is governed by the Swiss Civil Procedure Code (see Article 27 LTFB)  
1.2 An appeal to the Federal Supreme Court against decisions of the single Cantonal Courts is 
admissible in disputes relating to intellectual property rights, irrespective of the sum involved (Article 75(1) and Article 74(2)(b) LTF).  
 
An appeal to the Federal Supreme Court against decisions of the Federal Patent Court is admissible irrespective of the sum involved (Article 75(1) and Article 74(2)(e) LTF). 
 
With regard to unfair competition, an appeal to the Federal Supreme Court is admissible against final decisions taken by the Cantonal Courts which cannot be the subject of an ordinary appeal under Cantonal law if, according to the submissions of the parties concerned, the value of the rights 
contested before the final cantonal authority amounts to at least SwF 30'000 (Article 74(1)(b) LTF). 
Where provision has been made for a single Cantonal Court, the appeal to the Federal Supreme Court is admissible irrespective of the sum involved (Article 74(2)(b) LTF). 
 
2. Which persons have standing to assert IPRs? How may they be represented? Are 
there requirements for mandatory personal  appearances before the court by the 
right holder?   
 2.1  Which persons have standing to assert IPRs?  
 
2.1.1 Standing to act pursuant to a contractual obligation:   
 Any holder of an exclusive IPR or the beneficiary of an exclusive licence right whose right is or is 
likely to be infringed has standing to act before the courts (Article 62(1) and 62(3) LDA;  
Article 10(1) LTo;  Articles 55(1) and 55(4) LPM;  Article 35(1) and 35(4) LDes;  Article 72 and Article 75 LBI).  Holders of a non-exclusive licence are allowed to join an appeal made by the IPR 
right holder or the holder of the exclusive licence right.  
 The LDA, for instance, states that where there are a number of authors, each co-author has standing to bring an action against anyone who has infringed the rights over the common work;  however, he IP/N/6/CHE/2 
 
- 4 - 
 
  may do so only on behalf of all those concerned (Article 7(3) LDA). With regard to software, only the 
employer is authorized to appeal to the courts to prevent the unlawful use of software developed by an employee in the performance of his duties in the service of the employer and in accordance with his contractual obligations (see Article 17 LDA). 
 
Insofar as indications of source are concerned, trade or business associations may bring an action for the declaration of a right or a legal relationship or an action pursuant to a contractual obligation 
provided that their statutes authorize them to defend the economic interests of their members 
(Article 56(1)(a) LPM). Standing to act with regard to indications of source is also granted to national or regional organizations which are concerned, in accordance with their statutes, with consumer protection (Article 56(1)(b) LPM). These two categories of organization also have standing to bring 
an action for a declaration involving a guarantee mark or a collective mark (Article 56(2) LPM). 
 With regard to unfair competition anyone whose economic interest is or is likely to be infringed has 
standing before the courts (Article 9(1)(a-b) LCD). 
 2.1.2 Standing to act for the declaration of a right:   
 
Anyone with a legitimate interest in the declaration of a right or a legal relationship has standing to bring an action (see Article 61 LDA;  Article 10(1) LTo;  Article 52 LPM;  Article 33 LDes;  Articles 28 
and 74 LBI;  Article 9(1)(c) LCD). 
 
2.1.3 Standing to act for the assignment of a right:    
Where a patent application has been filed by a person who had no right to be granted the patent, the 
entitled person may request that the patent application, or the patent itself, if it has already been granted, be assigned to the entitled person (Article 29(1) LBI).  A similar action for assignment is 
provided for under the trademark law (Article 53(1) LPM) and under design law (Article 34 LDes). 
 2.2 How may they be represented?  
 
Each party has the right to either represent themselves or to be represented by a lawyer with power 
of attorney in legal proceedings. Legal persons and limited or commercial partnerships may be represented by a lawyer or a person responsible for managing the enterprise and authorized to sign 
on its behalf.   
 The ability to bring legal proceedings on behalf of others as a professional attorney (i.e. as a lawyer) 
is governed by the specific cantonal laws concerning the profession of lawyers. The requirement that 
a lawyer must be a member of the bar association of the Canton in which the action is brought has been abandoned with the entry into force of the Federal Act on the Free Circulation of Lawyers (RS 935.61, LLCA), which now enables lawyers to practise in any Canton.   
 
Only lawyers admitted to represent parties before Swiss courts under the LLCA are allowed to act as professional representatives (Article 68 CPC).  Be fore the Federal Patent Court, patent lawyers, 
under the Patent Lawyers Act of 20 March 2009, are also allowed to act as professional 
representatives (Article 29 LTFB).  
Only lawyers admitted to represent parties before Swiss courts may appear as attorneys before the 
Federal Supreme Court in civil and criminal disputes (Article 40 LTF).  2.3 Are there requirements for mandatory pe rsonal appearances before the court by 
the right holder?   
 If the court considers it necessary, it may, summon a party, or all the parties, to appear before the 
court in person (Article 68(4) CPC). If a party fails to appear before the court, the court continues 
the procedure in the absence of the summoned party (Article 147 CPC). If the absent party provides a satisfactory explanation, the court can grant a new time to appear in person before the court 
(Article 148 CPC).  
 IP/N/6/CHE/2 
 
- 5 - 
 
  3. What authority do the judicial authorities have to order, at the request of an 
opposing party, a party to a proceeding to produce evidence which lies within its control?  
 
As a general rule each party must, except under certain circumstances, prove the facts which it cites 
in order to exercise their rights before the courts (Article 8 CC). However, the parties are required to produce, during legal proceedings, all the evidence which lies within their control except their 
correspondence with their lawyers (see Article 160(1)(b) CPC). If a party claims that a document 
containing a crucial item of evidence lies within the control of the opposing party or a third party, the court may, at the request of that party, order the opposing party or third party to present that item of evidence. The opposing party may oppose the adducing of the evidence or the formal notice to 
produce a piece of evidence if the law allows it to do so (Article 162 et seq. CPC), especially if by 
presenting the document a person close to the opposing party would be liable under civil or criminal law or if by presenting the document the opposing party would be liable under Article 321 Criminal 
Code (CP) for revealing a secret (Article 163 CPC).   
 If a party disputes being in possession of an item of evidence, the judicial authorities may call upon 
that party to indicate where this item of evidence (e.g. a document) can be found. The party is then 
obliged to reveal the location of the evidence concerned (Article 160(1)(a)CPC), while failing to do so becomes punishable under criminal law (Article 306 CP). Any party to civil proceedings who has been directed by judicial authorities to reveal any evidence and has been made aware of the 
consequences of making false statements, could either face a custodial sentence of a period not 
exceeding three years and/or a monetary penalty (Article 306 CP).   
The court forms its opinion based on its free assessment of the evidence taken (Article 157 CPC).It 
will therefore take into account the unjustified refusal to answer a question put by the judge or to either produce required evidence or indicate where it can be found (see Article 164 CPC).  The court 
will also take into consideration the conduct of a party who deliberately disposes of evidence or 
makes it unusable.  Evidence which may not, because of its nature, be produced in court or which would damage 
legitimate interests may be consulted in situ (Article 181 CPC).   
 If a document is to be found within the control of a third party, that party is required to present the 
document in question (Article 160(1)(b) CPC). This obligation is waived if the content of the 
document concerns facts in respect of which it could refuse to give evidence (see Article 165 and 166 CPC). 
 
4. What means exist to identify and protect confidential information brought forward 
as evidence?  
 
Where evidence jeopardizes the legitimate interests of a party or a third party, especially if 
confidential information is concerned, the court may take necessary means to protect these interests (see Article 156 CPC). 
 
Witnesses may refuse to testify concerning matters which, if revealed, would expose them to criminal liability under Article 321 CP (see Article 166(1)(b) CPC).   
 
5. Describe the remedies that may be ordere d by the judicial authorities and criteria, 
legislative or jurisprudential, for their use:   
 
5.1 Injunctions  
 The holder of a right over an intangible asset whose IPR is or is likely to be infringed may request an 
injunction from judicial authorities to prevent an infringement, if it is imminent, or to stop an on-
going one (Article 62(1)(a-b) LDA;  Article 10(1) LTo;  Article 55(1)(a-b) LPM;  Article 35(1)(a-b) LDes;  Article 66 and 72 LBI;  Article 9(1)(a-b) LCD).   
 
In the case of an imminent infringement, it is not necessary to prove fault or damage. The action to prevent an imminent infringement presupposes a sufficient interest; this exists if the holder of the IPR is directly threatened by the unlawful act, i.e. if there are serious grounds to fear infringement of 
the IPR. IP/N/6/CHE/2 
 
- 6 - 
 
   
The subject of the action to prevent an on-going infringement must be defined precisely in the submissions accompanying the action. The plaintiff must give an exhaustive description of the defendant's unlawful conduct, so that no difficulty can arise when enforcing the judgment. The 
injunction may, as a matter of course, be coupled with the threat of the penalties provided for in 
Article 343 CPC (criminal penalty under Article 292 CP, disciplinary fees up to SwF 5'000.- or SwF 1'000.- for each day of non-compliance) addressed to the defendant.   
 
5.2 Damages, including recovery of profit s, and expenses, incl uding attorney's fees  
 5.2.1 Damages 
 Anyone who, either intentionally, through negligence or carelessness, infringes an IPR and causes damage to the IPR holder, is required under the CO to repair that damage (Article 62(2) LDA;  
Article 10(1) LTo;  Article 55(2) LPM;  Article 35(2) LDes;  Article 73(1) LBI;  Article 9(3) LCD). The 
right holder then has a choice between various actions for damages and recovery provided under the CO:  an action for the payment of damages (damnum emergens et lucrum cessans)  (Article 41 et 
seq. CO), an action for surrender of the proceeds of unjust enrichment (Article 62 CO), an action to 
compensate for non-pecuniary damage (Article 49 CO), and an action for the handing-over of earnings in accordance with the principles of busi ness conducted in the agent's interest (Article 423 
CO). 
 
If the right holder is unable to quantify the damage he has suffered or the infringer's unlawful profit, he may ask the judge to use his discretion in determining the amount of compensation ( ex aequo et 
bono), in the light of the ordinary run of events and the measures taken by the injured party 
(Article 42(2) CO).  
5.2.2 Legal fees 
 
The court rules as a matter of course on the costs of the case (Article 104 CPC). The parties may provide a detailed statement of their expenses before the judgment is delivered (Article 105(2) CPC). 
As a general rule, the legal costs are awarded against the party which has lost the case (see 
Article 106(1)) CPC). If neither of the parties has won the case on all counts the costs are allocated in accordance with the outcome of the case (Article 106(2) CPC). Unnecessary expenses are charged 
to the party that caused them (Article 108 CPC). 
 At the request of the parties the court decides, by ruling on the dispute itself, whether and to what 
extent the costs of the party which has won the case will be borne by the party which has lost. As a 
general rule the losing party is required to reimburse all essential costs occasioned by the dispute (see Article 111(2) CPC). The compensation includes the costs for professional representation and the reimbursement of necessary outlays (Art. 95(3)(a-b) CPC). In justified cases, the court may also 
grant reasonable compensation for personal efforts if a party is not professionally represented 
(Article 95(3)(c) CPC).    
5.3  Destruction or other disposal of infringing goods and materials/implements for 
their production  
 
In all fields of intellectual property the court may order items which have been made or used 
unlawfully, as well as instruments, tools and other resources intended mainly for manufacturing them, to be confiscated, destroyed or rendered unfit for use (see Article 63(1) LDA;  Article 10(1) LTo;  Article 57 LPM;  Article 36 LDes;  Article 69(1) LBI). An exception is made for works of 
architecture already constructed (Article 63(2) LDA) and semi-conductor products acquired in good 
faith which contain illegal copies of topographies (Article 10(2) LTo). It is permitted to put the latter back into circulation;  however, the producer is entitled to receive a fair payment. In the event of a 
dispute, the court determines whether the entitlemen t to payment is substantiated and, if so, fixes 
the amount of the payment (Article 8 LTo).  
With regard to trademarks, a distinction is made between an article bearing a mark which is 
counterfeit or illegal in some way and the article itself. It is the mark which is deemed to constitute a breach of the right to the mark (except in the case of a mark relating to the form, where the article is individualized by the form itself). According to trademark law it is for the court to decide "whether IP/N/6/CHE/2 
 
- 7 - 
 
  the mark or indication of source is to be rendered unrecognisable or whether the articles are to be 
rendered unfit for use, destroyed or used in a particular manner" (Article 57(2) LPM).  Even if the case is dismissed, the court may order the destruction of articles manufactured in breach 
of a patent and of the instruments, tools and other resources intended mainly for the infringement of 
a patent (Article 69(3) LBI).    
5.4 Any other remedies  
 Publication of the judgment 
 
At the request of the party which has won the case the court may order the judgment to be 
published at the expense of the opposing party (Article 66 LDA;  Article 10(1) LTo;  Article 60 LPM;  Article 39 LDes;  Article 70(1) LBI;  Article 9(2) LCD). 
 
6. In what circumstances, if any, do judi cial authorities have the authority to order 
the infringer to inform the right holder of the identity of third persons involved in 
the production and distribution of the good s or services found to be infringing and 
of their channels of distribution?  
 The LPM, the LDA, the LDes and the LTo authorize the right holder whose right is being or is likely to 
be infringed to ask the judge to require the other party to indicate the source and the quantity of 
those goods in its possession which have been unlawfully reproduced or unlawfully provided with a distinctive sign as well as the addressees' names and the extent of the distribution to commercial 
customers (Article 62(1)(c) LDA;  Article 10(1) LTo;  Article 55(1)(c) LPM; Article 35(1)(c) LDes).  
The law on patents stipulates that the refusal to declare to the "competent authority" the source, the quantity, the addressees and the extent of the commercial customers of those products in its 
possession that have been unlawfully manufactured may give rise to civil or criminal proceedings 
(see Article 66(b) LBI).    7. Describe provisions relating to the indemnification of defendants wrongfully 
enjoined. To what extent are public authorities and/or officials liable in such a 
situation and what "remedial measures" are applicable to them?   
 
7.1 As a general rule the party which loses the case will be ordered to reimburse in full the 
opposing party's costs (see Article 105(2) and 106 CPC).  This includes the reimbursement of necessary outlays, the costs for professional representation and, in justified cases, a reasonable 
compensation for personal e fforts if a party is not professionally represented.   
 If, at the request of the plaintiff, the court has wrongfully enjoined the defendant, the latter may, on the basis of Articles 41 et seq . CO, claim compensation via the ordinary procedure, provided that he 
has suffered damage as a result of the judgment that was delivered, that the plaintiff's petition 
constitutes an unlawful act and that the plaintiff brought the action intentionally, through negligence or serious carelessness, or that he has caused the damage intentionally by means of action contrary 
to accepted standards of behaviour. If the plaintiff has, as a result of negligence or slight 
carelessness, wrongly assessed a legal situation, he may be ordered to reimburse the costs and expenses in full. According to precedents established by the Federal Supreme Court, it would be 
contrary to the legal system to permit the defendant to claim compensation from the plaintiff (see 
ATF 117 II 396, 3b).  In the event of unjustified provisional measures (interim measures), the possibility of bringing an 
action via the ordinary procedure against the plaint iff for compensation in respect of the damage is 
explicitly provided for in the federal civil procedure law. Article 264(2) CPC provides that the applicant is liable for any loss or damage caused by an unjustified provisional measure. If the 
applicant proves, however, that he or she applied for the measure in good faith, the court may 
reduce the damages or entirely release the applicant from liability. Any security paid must be released once it is established that no action for damages will be filed;  in case of uncertainty the 
court may specify a suitable period within which the opposing party must bring their action 
(Article 264(3) CPC).  7.2 Whether decisions or judgments are erroneous is, in principle, verified through the normal 
channels of appeal. The authority and/or the public servant in question is not liable in such a IP/N/6/CHE/2 
 
- 8 - 
 
  situation. According to the decisions of the Federa l Supreme Court, an unlawful act giving rise to 
liability can occur only if there has been a serious and obvious error. In the case of public authorities and officials, the idea of an unlawful act is tied up with that of a breach of official duties. An unlawful act occurs if the judge or the public servant is guilty of negligence or an error which would not have 
been perpetrated by a normally conscientious magistrate (ATF 112 II 231).  If they acted or intended 
to act in good faith when, at the request of the plaintiff, they enjoined a particular course of action, proceedings for damages are excluded.   
 
Liability of members of the Federal Supreme Court, the Federal Institute of Intellectual Property and other independent federal authoritie s, the Federal Administrative Court, the Federal Patent Court, the 
Federal Administration and other independent federal authorities vis-à-vis  third parties is governed 
by the Federal Law on the Liability of the Confederation, Members of its Authorities and its Officials 
(RS 170.32, LRCF;  see Article 1(1) LRCF). According to Article 3(1) LRCF, the Confederation is liable for damage caused unlawfully to a third party by an official in the performance of his duties. The 
aggrieved party cannot take any action against the offending official. Also, the legality of the final 
decisions, orders and judgments cannot be re-examined in an action for damages (see Article 12 LRCF). 
 
Each Canton has its own laws on liability for public law acts. In fact, most Cantons have the same system as the Confederation, with the Canton being liable for damage unlawfully caused to a third party by an official  in the performance of his duties.   
 
8. Describe provisions governing the length and cost of proceedings.  Provide any 
available data on the actual durati on of proceedings and their cost.   
 
8.1 Length of proceedings 
 
There is no data on the duration of proceedings. This depends on numerous factors which can vary 
on a case-by-case basis (complexity of the matter, number of exchanges of documents, appeal to the Federal Supreme Court, etc.).    
8.2 Cost of proceedings 
 
The cost of proceedings include legal and other expenses. The Cantons fix the scale of legal charges 
(Article 96 CPC).    
 The court fees at the Federal Patent Court are fixed according to the sum involved in the dispute, the 
scale and difficulty of the case, the way in which the parties proceed and their respective financial 
situation (Article 31(2) LTFB). The court fees range from SwF 1'000 to SwF 150'000 (Article 31(3) LTFB)  
The court fees at the Federal Supreme Court level are also fixed according to the sum involved in the 
dispute, the scale and difficulty of the case, the way in which the parties proceed and their respective financial situations (Article 65(2) LTF). For instance, the court fees for an appeal may, depending on 
the sum involved, range from SwF 200 to SwF 100,000 (see the Federal Supreme Court's scale of 
court fees, 31 March 2006;  RS 173.110.210.1).    
At the cantonal level the judge determines the parties' compensation and the attorney's fees within 
the limits of the scale of charges, using his discretion to assess the amount of time lost, the nature of the work done and the sum involved in or importance of the case (Article 95 CPC).  
For cases heard by the Federal Patent Court, a scal e determined by the court establishes the amount 
of the costs awarded to the opposing party, based on the sum involved in the dispute (Article 4 of the Rules for procedural costs before the Federal Patent Court, RS 173.413.2). The compensation 
ranges from 2'000 to 300'000 (Article 5 of the Rules). 
 For cases heard by the Federal Supreme Court, a scale determined by the court establishes the 
amount of the costs awarded to the opposing party in respect of the court proceedings and also 
takes attorney fees into account. (Article 4 rules for costs awarded to the opposing party in cases heard by the Federal Supreme Court (RS 173.110.210.3)). The costs include the compensation payable to the opposing party and his attorney's fees. The compensation payable to the opposing 
party includes the reimbursement of his disbursements. Where this is justified by special IP/N/6/CHE/2 
 
- 9 - 
 
  circumstances, the court may also award compensation for time or earnings lost as a result of the 
dispute (with regard to the federal level, see Article 11 of the rules;  see also the reply to question 5, in particular reply 5.2.2). For an appeal, the amount of the fees ranges between SwF 600 and SwF 4'000 (where the sum involved is less th an SwF 20'000), and SwF 20,000 and 1 per cent 
(where the sum involved is more than SwF 5'000'000) – see Article 4 rules for costs awarded to the 
opposing party in cases heard by the Federal Supreme Court. In exceptional cases, such as those requiring an extraordinary amount of work (where the evidence is lengthy and difficult to 
substantiate and the case is a big and complex one), the Federal Supreme Court may award fees 
which are higher than the normal rate (Article 8 rules for costs awarded to the opposing party in cases heard by the Federal Supreme Court).    
It should be noted that the Federal Supreme Court's scale of charges does not apply to relations 
between the lawyer and his client;  these are governed by the contract of agency provisions of the code of obligations. In this case, attorney's fees are normally calculated in accordance with a scale 
laid down by the bar association of each Canton and depend on a number of factors, including the 
amount involved in the dispute.    
Legal aid is granted to an indigent party:  this applies at both the federal level (Article 64 LTF; 
Article 34 LTFB) and the cantonal level (117 – 123 CPC).  In light of the foregoing, it is difficult to put a precise figure on the total cost of a case owing to 
numerous factors which may be taken into account, such as the sum involved in the dispute, the 
length of the proceedings, the number and length of  the hearings, the cost of expert opinions and 
witnesses' allowances.   
 
 (b) Administrative procedures and remedies  
9. Reply to the above questions in relation to any administrative procedures on the 
merits and remedies that may result from these procedures  
 With regard to intellectual property, only the federal authorities are involved in administrative 
procedures. Articles 7 to 43 of the Federal Law on Administrative Procedures (LPA) apply to 
first-instance administrative procedures, i.e. before the Swiss Federal Institute of Intellectual Property. The appeals procedure involving the Federal Administrative Court is, however, governed by 
Articles 44 to 71 of the LPA and by the Federal Act on the Federal Administrative Court (LTAF).  
Where an administrative-law appeal to the Federal Supreme Court is admissible, proceedings before this authority are governed by Articles 82 to 112 LTF. 
 
It should be stressed that Swiss intellectual property law does not provide for administrative 
procedures on the merits and remedies for IPR infringements such as those referred to within the context of judicial proceedings.  However, for reasons of transparency , a description is given of the 
rules which apply to administrative procedures in general. The following may be cited as types of 
administrative procedure to which an IPR holder may have recourse to assert his right:    
- Opposition procedure by the holder in respect of a registration which he considers to be in 
conflict with his IPR
3; 
- a request for intervention at the border. 
 
9.1 Specify the admi nistrative authorities which have jurisdiction over IPR 
infringement cases  
 
Opposition procedure in the event of a conflict with a prior IPR  
 
This procedure is provided for in the field of trademarks, geographical indications and patents.   
 
The holder of a prior mark may lodge an objection to a new registration with the Swiss Federal Institute of Intellectual Property within three months of that registration being published (Article 31 
et seq . LPM).   
 
                                               
3 Opposition proceedings are covered by Article 62 of the TRIPS Agreement. Except in the case of 
trademarks, opposition proceedings may be initiated for reas ons other than that of a conf lict with a prior right.   IP/N/6/CHE/2 
 
- 10 - 
 
  Appeals against decisions of the Institute may be lodged with the Federal Administrative Court 
(Article 44 LPA). In this context, the Court acts as an independent tribunal and applies the LPA and the LTAF. If the objector wins his case, the registration of the mark will be revoked. If not, he may lodge a complaint with the civil courts against the party registered as the holder of the mark or 
patent. The Federal Administrative Court's decisions in trademark opposition cases are final 
(Article 73 LTF).  
It is also possible to oppose patent applications within nine month after the publication of the 
registration with the Swiss Federal Institute of Intellectual Property (Article 59 c LBI). Anyone may 
oppose the registration based on absolute grounds for refusal (Article 1 a, 1b and 2 LBI). Appeals 
against these decisions are dealt with in the first instance by the Federal Administrative Court (see 
Article 59c(3) LBI) and in the final instance by the Federal Supreme Court. 
 With regard to geographical indications in respect of agricultural products and processed agricultural 
products, anyone who can prove a legitimate interest or the Cantons may lodge an objection to the 
registration of a geographical indication with the Federal Agriculture Office (see Articles 10 and 11 of the Ordinance on the Protection of Appellations of Origin and Geographical Indications in respect of 
Agricultural Products and Processed Agricultural Products, RS 910.12). Appeals against these 
decisions are dealt with in the first instance by th e Federal Administrative Court (Article 44 LPA) and 
in the final instance by the Federal Supreme Court. Possible grounds for objection may include a conflict with a well-known or reputable mark or name which is completely or partly homonymous and 
has been in use for a long time.   
 Measures at the border 
 The Customs Authorities are responsible for measures at the border. They may suspend the release into free circulation of a suspect consignment "ex officio" and alert the persons referred to in 
section 9.2.1 below or may act on request from such a person. The Customs Authorities' decision 
cannot be appealed. The introduction of an appeals procedure would run counter to the goal pursued by the Customs Authorities, viz. to act in as simple and rapid a manner as possible to give the applicant the time to obtain provisional measures from the civil court. An appeal could actually 
prevent the Customs Authorities from acting in time. It should be noted that if someone applies for a 
measure at the border, as a rule, provisional measures from the civil law judicial authorities should be requested within the prescribed periods (see, for instance, Article 77(2) LDA;  Article 72(2) LPM). 
 
See also the replies to questions 15 to 19.  
9.2 Which persons have standing to assert IPRs?  How may they be represented?  Are 
there requirements for mandatory personal  appearances before the administrative 
authority by the right holder?    
9.2.1 Which persons have standing to assert IPRs?  
 Opposition procedure in the event of conflict with a prior right 
 With regard to trademarks, only the holder of a prior mark, which has been filed or registered, or a well-known mark may oppose the subsequent registration of another mark within three months of 
that mark being published (Article 31 LPM). Insofar as patents are concerned, any person may, 
within nine months of publication of a patent registration, oppose the issuing of the patent (Article 59 c LBI). With regard to an appeal to the Federal Administrative Court against decisions 
concerning opposition applications, anyone involved as a party to the procedure which led to the 
decision appealed against or anyo ne excluded from the procedure by the decision appealed against 
has standing to act.    
Measures at the border 
 
The following have standing to apply for action to be taken:  the holder of a trademark, copyright or 
neighbouring right, the right to an industrial design or integrated circuit topography, the registered 
holder of a geographical indication, copyright or neighbouring rights collecting societies, licensees entitled to lodge a civil procedure or even trade or business associations which are authorized to do so with regard to geographical indications (Article 75(1) and 76(1) LDA and Article 12 LTo with a 
cross-reference to Article 75(1) LDA;  Article 71(1) LPM;  Article 47 LDes;  86 b LBI). IP/N/6/CHE/2 
 
- 11 - 
 
   
See also the replies to questions 15 to 19.  
 9.2.2 How may they be represented?  
 
At all stages of the administrative procedure, a party may be represented, unless it has to act in person, or be assisted if this possibility is not ruled out in view of the urgency of an official inquiry. 
The person representing or assisting the party in question must possess civic rights (Article 11 LPA). 
  In administrative procedures, in both the first and final instance, there is no obligation to be represented by a lawyer (see Article 11 LPA;  conversely Article 40 LTF). 
 
Nevertheless, there are provisions requiring parties to be represented by an attorney:  anyone who is party to an administrative procedure concerning intellectual property and who is neither resident in 
nor has his head office in Switzerland must be represented by an attorney established in Switzerland 
(Article 42 LPM;  Article 5 OPM;  Article 18 LDes;  Article 5 ODes;  Article 13 LBI and Article 8 OBI). In addition, if more than 20 people submit collective or individual applications to defend the same 
interests, the authority may require them to select, for the procedure, one or more representatives 
(Article 11 a LPA).  
 9.2.3  Are there requirements for mandatory personal appearances before the 
administrative authority by the right holder?  
 The parties are required to collaborate with the court to establish the facts of the case at hand and 
have a wider obligation under a federal law to provide or disclose information.  The authority may 
declare applications inadmissible if the parties refuse to cooperate insofar as they can be expected to do so (Article 13 LPA). 
 
9.3 What authority do the administrative authorities have to order, at the request of an opposing party, a party to an administrative  procedure to produce evidence which lies 
within its control?  
 
The LPA does not contain any direct or exhaustive answer to this question. With regard to the procedure of taking evidence, the rules of Federal Act on Federal Civil Procedure (PCF, RS 273) apply 
mutatis mutandis  (Article 19 LPA), namely those relating to proof and evidence such as that provided 
by witnesses, documents, visual inspection and ex perts. The parties are required to produce in the 
legal proceedings all the evidence which lies within their control (see Article 50(1) PCF). If a party 
claims that a document containing a crucial item of evidence lies within the control of the opposing 
party or a third party, the court may, at the request of that party, order the opposing party or third party to present that item of evidence.     
If a party disputes being in possession of an item of evidence, the judicial authorities may call upon 
it, subject to the statutory penalties, to indicate where this item of evidence (e.g. a document) can be found (see Article 50(1) PCF). 
 
Documents which may not, because of their nature, be produced in court or which would damage legitimate interests may be consulted in situ (Article 53 PCF).   
 
If a document is to be found within the control of a third party, that party is required to present the document in question. This obligation is waived if the content of the document concerns facts in respect of which it could refuse to give evidence as a witness pursuant to Article 42 PCF (see 
Article 51(1) CPC). 
 In the event of a refusal to cooperate, the authority may apply statutory fines (Article 292 of the 
Criminal Code (CP)) or direct enforcement against the person of the obligor or his assets (Article 41 
LPA). The appeals authority may reprimand or impose a disciplinary fine of up to SwF 3'000 on the parties or their representative if they break with the conventions or disrupt the conduct of a case 
(Article 60 LPA). It should be noted that the authority must not apply a means of constraint which is 
more rigorous than required by the circumstances (proportionality rule;  Article 42 LPA).   
 IP/N/6/CHE/2 
 
- 12 - 
 
  9.4 What means exist to identify and protect confidential information brought forward 
as evidence?  
 The party or its attorney is entitled to consult, under the auspices of the authority called upon to 
hear and determine the matter, all documents serving as evidence (Article 26(1) LPA).  The authority 
may refuse permission to consult the documents only on the following conditions:  if important public interests of the Confederation or the Cantons (in particular the internal or external security of the 
Confederation) or important private interests (particularly those of the opposing party) require that 
secrecy be maintained or if the interests of an official enquiry which has not yet been closed so require (Article 27(1) LPA).  Refusal to authorize consultation of documents may extend only to those which have to be kept secret (Article 27(2) LPA).  The provisions of the Federal Law on Civil 
Procedure (PCF) apply mutatis mutandis  to the protection of confidential information in the 
production of the documents held by third partie s and in the procedures governing the giving of 
evidence (Article 19 LPA, which has a cross-reference to Article 51 PCF).   The judge may order a 
document containing confidential information to be concealed wholly or partly from the opposing 
party or where necessary from both parties (see Article 38 PCF).  If there are grounds for withholding only certain passages of a document, the court may order those passages to be 
concealed from view by affixing seals or in some other way (see Article 51(1) PCF).  It may also 
order the presiding magistrate or a delegation from the court to examine confidential information at the premises of the holder of that information, in order to prevent legitimate interests from being damaged by the disclosure of the documents.   
 
9.5 Describe the remedies that may be orde red by the administrative authorities and 
criteria, legislative or jurisprudential, for their use:   
 
9.5.1 Injunctions 
 
An IPR holder whose IPR is being or is likely to be infringed must ask the civil judicial authorities to 
grant injunctions (see the reply to question 5.1).  The Swiss Federal Institute of Intellectual Property cannot grant injunctions. The Federal Administrative Court may grant injunctions to uphold an existing situation or to secure threatened interests (Article 56 LPA).   
 
9.5.2 Damages, including recovery of profits, and expenses, including attorney's fees 
 
Damages 
 
An IPR holder whose right is being or is likely to be infringed must ask the civil judicial authorities to 
award damages (see reply to question 5.2.1). 
 Administrative expenses 
 
The competent authority also determines the procedural and legal costs (Article 63 and 64 LPA). 
Thus the Swiss Federal Institute of Intellectual Property, for instance, decides by ruling on the opposition itself, whether and to what extent the costs of the party which wins the case will be borne 
by the losing party (Article 34 LPM). 
 
Procedural costs:  as a general rule, the procedural costs, which comprise the fee for 
granting the order, the administrative fees and disbursements, are borne by the losing party. 
No procedural costs may be awarded against the federal authorities. Costs may be imposed against a party that contravenes procedural rules (Article 63 LPA). 
 
Legal costs:  The competent authority may, automatically or upon request, award the party 
which has won on all or some of the counts, compensation for the essential, relatively high 
expenses it has incurred, particularly in respect of attorney's fees (Article 64 LPA). 
 
The rules on costs and compensation in connection with administrative proceedings are contained in the Ordinance on Costs and Co mpensation in respect of Ad ministrative Procedures of 
10 September 1969 (RS 172.041.0). 
 IP/N/6/CHE/2 
 
- 13 - 
 
  9.5.3 Destruction or other disposal of infringing goods and materials/implements for their 
production 
 
The destruction or other disposal of such goods may be ordered only by the judicial authorities. See 
reply to question 5.3. Under certain circumstances, Customs Authorities may destroy infringing 
goods without judicial authority (see reply to question 19).  
9.5.4 Other remedies 
 
The administrative authorities may not order other remedies such as those described in the reply to question 5.4. 
 
9.6 In what circumstances, if any, do admi nistrative authorities have the authority to 
order the infringer to inform the right holder of the identity of third persons involved in 
the production and distribution of the goods or services found to be infringing and of their 
channels of distribution?  
 
While administrative authorities do not have this authority, civil and criminal authorities do and may 
order the infringer to reveal the identity of third persons involved in the infringing activity to the court. The right holder may take advantage of his procedural rights to gain access to such information. The infringer is subject to sanctions if he refuses to cooperate without valid reasons.  
 
9.7 Describe provisions relating to the indemnification of defendants wrongfully enjoined.  To what extent are public authorities and/or officials liable in such a situation 
and what "remedial measures" are applicable to them?  
 See reply 7.2. 
 
Under the Federal Law on the Liability of the Confederation, Members of its Authorities and its Officials (LRCF, RS 170.32), the Confederation is liable for the damage caused unlawfully to a third party by an official in the performance of his duties, irrespective of whether the official was 
negligent. The injured party cannot bring an action against the negligent official. If a third party 
claims damages from the Confederation, the latter immediately notifies the official, against whom it could exercise a right of appeal (Article 3 LRCF). If the Confederation compensates for the damage, 
it may bring an action for indemnity against the official if he caused the damage intentionally or as a 
result of gross negligence, even after the employer/employee relationship has been terminated (Article 7 LRCF). The official is liable for damage caused directly to the Confederation as a result of a 
violation of his official duties, either intentionally or through serious negligence (Article 8 LRCF). The 
general provisions on the creation of obligations resulting from unlawful acts (Code of Obligations) are applicable to the Confederation's claims against its officials (Article 9(1) LRCF). The provisions concerning officials apply inter alia  to members of the Federal Supreme Court, the Federal 
Administrative Court, the Federal Patent Court and the Federal Criminal Court, members of the 
independent federal authorities and of the federal administration, to officials and other servants of the Confederation and to all persons directly entrusted with public law tasks by the Confederation 
(Article 1(1), Article 2(1), Articles 3 to 10 LRCF). Under the same law criminal proceedings are also 
possible if felonies or misdemeanours are committed by officials in the performance of their duties (Article 13 et seq . LRCF). Provision is also made for disciplinary liability (Articles 17-18 LRCF). If a 
body or an employee of an independent institution of the ordinary civil service entrusted by the 
Confederation with carrying out public law tasks wrongfully causes, in the performance of these activities, damage to a third party, the institution is liable for this wrong vis-à-vis  the injured party 
and the Confederation is liable, vis-à-vis  the injured party, for the da mage in respect of which the 
institution is not able to provide compensation. It can - as can the institution - take action against 
the negligent official (A rticle 19 LRCF).   
 
9.8 Describe provisions governing the length and cost of proceedings.  Provide any 
available data on the actual duration of proceedings and their cost.  
 
Cost: For the charges and costs of proceedings with the Swiss Federal Institute of Intellectual 
Property, see the Ordinance on the Charges of the Swiss Federal Institute of Intellectual Property, 
SR 232.148).  IP/N/6/CHE/2 
 
- 14 - 
 
  For charges, costs and compensations in administrative procedures, see the Ordinance on Costs and 
Compensation in respect of Administrative Procedures (RS 172.041.0) with cross reference to the rules on Costs and Compensation in respect of Procedures at the Federal Administrative Court (RS 173.320.2). 
  
With regard to the cost of proceedings under the auspices of the Customs Authorities, see the reply to question 17. 
 
Length: The period of time permissible for an authority to decide cannot be determined in the 
abstract. It depends on a number of factors, including the complexity of the case and the interests at stake.  
 
For opposition proceedings, it is difficult to give a precise average figure, because the length depends very much on the complexity of the case, the number of exchanges of documents, extensions of the 
time-limits, the suspensions of proceedings and whether or not there is more than one opposing 
party. For instance, for a simple case (with a single exchange of documents and only three extensions of the periods allowed for replying), the length will be between eight and 12 months. The 
Swiss Federal Institute of Intellectual Property endeavours to ensure that the proceedings are 
completed swiftly.    An appeal to the Federal Administrative Court against a decision to have a judgment set aside can 
take on average eight to 10 months. It should be po inted out that a party can at any time appeal to 
the supervisory authority on the grounds of a miscarriage of justice or unjustified delay against an authority which, without good reason, refuses to act or delays taking a decision (Article 46 a LPA). 
 
Provisional measures (interim measures) 
 (a) Judicial measures 
 
10. Describe the types of provisional measures  that judicial authorities may order, and 
the legal basis for such authority.   
 
10.1 Civil procedural law 
 
The Swiss Civil Procedure Code (CPC) governs the judicial authorities' powers and the conditions for 
ordering provisional measures in civil proceedings (Article 261 – 269 CPC).   
 The various provisional measures are not listed by the law in an exhaustive manner; the court can 
and must adapt them to take account of the specific characteristics of each individual case 
(Article 262 CPC). In general the provisional measures are concerned essentially with guaranteeing the de facto or de jure  situation or safeguarding the legitimate interests of the parties to the 
proceedings, up until the final judgment. With regard to intellectual property, the following 
provisional measures should be noted (e.g. Article 65 LDA; Article 59 LPM;  Article 38 LDes ;  
Article 10(1) LTo; Article 77(1) LBI;  Article 43 LPOV):    
- measures to ensure that the relevant evidence in connection with the alleged infringement is 
preserved;  
 
- measures to identify the source of goods made or released for circulation unlawfully or to 
obtain a precise description of the processes allegedly applied illegally, of the products allegedly counterfeited or manufactured illegally and of the facilities, tools, etc. used in their manufacture; 
 
- precautionary measures to maintain the existing de facto situation;   
- measures to ensure on a provisional basis the exercising of the claims to prevent or put an 
end to the disturbance. 
 
10.2 Criminal procedural law 
 
There are two types of provisional measures in criminal proceedings.  IP/N/6/CHE/2 
 
- 15 - 
 
  The first prompts judicial and police authorities to take temporary measures to guarantee that 
circumstantial and other evidence is preserved. The public prosecutor, however, may only take these measures if (Article 197 CPP):  
- they are permitted by law; 
- there are reasonable grounds for suspicion of a criminal act; 
- there are no more moderate measures to reach the same goal; 
- the seriousness of the criminal offence justifies the measure. 
 With regard to intellectual property the public prosecutor may inter alia  seize the allegedly 
counterfeit items and the instruments and implements used principally for counterfeiting purposes 
(see Article 44 LDes;  conversely Article 72 LDA;  Article 68 LPM;  Article 69 LBI). The public 
prosecutor may order the seizing of allegedly counterfeit items or of instruments and implements used mainly for counterfeiting purposes which can used as evidence (Article 263 CPP). According to the Federal Supreme Court the judicial authorities may order provisional measures in all IPR-related 
criminal proceedings in accordance with the " in majore minus " principle.
4 It should be noted that an 
exception applies to completed works of architecture. According to Article 72 LDA, these may not be confiscated. 
 
The second provisional measure empowers the judicial and police authorities to resort to coercive or constraining measures to ensure that the suspect is present throughout the proceedings and above 
all that the final decision is enforced. Remand and preventive detention, however, are only permitted 
if there is a strong suspicion that the accused has committed a felony or misdemeanour and there is a serious concern that the accused (Article 221 CPP):  
- will evade criminal proceedings or the anticipated sanction by absconding; 
 
- will influence people or tamper with evidence in order to compromise efforts to establish the 
truth; or  
- will pose a considerable risk to the safety of others by committing serious felonies or 
misdemeanours since he or she has already committed similar offences. 
 Where there is a risk in any delay, the police or members of the public may provisionally seize items or assets on behalf of the public prosecutor or the courts (Article 263(3) CPP). 
 
11. In what circumstances may such measures be ordered inaudita altera parte ? 
 
11.1  Civil procedural law 
 
In general, the judge gives the opposing party the opportunity to be heard, this fundamental 
principle stems from Article 29(2) Cst. However, if the infringement is imminent such that time does 
not permit the opposing party to be heard, the judge may order emergency measures subject to an 
application simply being made (Article 265 CPC). This presupposes that not only are all the conditions satisfied for the granting of the provisional measures but also that the applicant 
demonstrates that the likely imminence of the threat of infringement is such that there is no time left 
to hear the opposing party. The latter must be notified as soon as the provisional measures have been carried out.   
 
11.2  Criminal procedural law 
 In criminal proceedings compulsory measures must be ordered in writing and the persons directly 
concerned must be given a copy of the warrant and of any records relating to its execution against 
confirmation of receipt (Article 199 CPP).  If the person in possession of the seized article is not present while it is actually being seized, he must be notified as soon as the provisional measure has 
been carried out (Article 29 Cst and Article 6 European Convention on Human Rights, CEDH). 
 
                                               
4 According to the " in majore minus " principle the judge may confiscate articles made or used illegally as 
well as instruments, tools and other resources intended ma inly for their manufacture. See reply 5.3. He may also 
order the provisional seizure of these articles. IP/N/6/CHE/2 
 
- 16 - 
 
   
12. Describe the main procedures for the in itiation, ordering and maintenance in force 
of provisional measures, in particular relevant time-limits and safeguards to protect the legitimate interests of the defendant.   
 
12.1 Civil procedural law 
 
The main procedures for the initiation, ordering and maintenance in force of provisional measures, in 
particular relevant time-limits and safeguards to protect the legitimate interests of the defendant, are governed by the CPC and by the federal intellectual property laws. Anyone wishing to apply for provisional measures has to credibly demonstrate that a right to which he is entitled to has been 
violated or a violation is anticipated, and that the violation threatens to cause not easily reparable 
harm to the applicant (Article 261 CPC). Reasons to order provisional measures could be (see Article 65 LDA;  Article 10(1) LTo;  Article 59 LPM;  Article 38 LDes;  Article 77 LBI;  Article 43 
LPOV):   
 
- to preserve evidence 
- to establish the origin of the manufactured goods infringing the intellectual property right 
- to preserve facts 
- to temporarily cease or prevent the infringement  
 
As a general rule the court gives the opposing part y the opportunity to be heard (Article 29 Cst., 
Article 53 and Article 253 CPC). In the event of an emergency measure being imposed (see reply to 
question 11), the opposing party must be notified as soon as the measures have been carried out.    
The provisional measures guarantee that the applicant's rights will be provisionally protected for the 
duration of the proceedings. However, they may already be applied for before the action is brought. If need be, the court, when it allows the application, will grant the applicant a period to bring the 
action, informing him that the provisional measures will lapse if he fails to act within that period 
(Article 263 CPC). The measures become automatically ineffective when the decision on the merits comes into force. The court may order their continuation if it serves the enforcement of the decision 
or if the law so provides (Article 268(2) CPC). The judge always has the option to modify or revoke 
the provisional measures he has ordered if the circumstances have changed or if the measures have proven unjustified (Art icle 268(1) CPC).   
 
The applicant is liable for any loss or damage caused by unjustified provisional measures. If the 
applicant proves, however, that he or she applied for the measures in good faith, the court may reduce the damages or entirely release the applicant from liability (Article 264(2) CPC). The court 
may make the provisional measure conditional on the payment of security by the applicant if it is 
anticipated that the measures may cause loss or damage to the opposing party (Article 264(1) CPC).   
12.2  Criminal procedural law 
 
It is for the judicial authorities (the public prosecutor and the court) to order the necessary provisional measures.   
 
It is also for the public prosecutor to lift the applied measures as soon as the conditions which led to the measures being taken have been remedied or satisfactorily addressed (see Article 267(1) and 
Article 212(2)(a) CPP). The fate of the items and assets that were seized must be determined in the 
final judgment at the latest (Article 267(3)-(6) CPP).    
All measures are subject to the proportionality rule (Article 5(2) Cst.). This rule requires the judge to 
resort, if possible, to less incisive measures, such as the drawing-up of an inventory or the taking of photographs (see also Articles 212(2) and 268 CPP).    
The provisional measures may be the subject of a judicial review at cantonal level (Article 393 CPP). 
However, during the appeals process, the provisional measures will stay in place until the court of appeals has issued its decision. (see Article 387 CPP).   
 
With regard to the liability of the public prosecutors or the judges in the event of a wrongful seizure, please see the reply to question 7.   
 IP/N/6/CHE/2 
 
- 17 - 
 
   
13. What, under normal circumstances, is the length and cost of proceedings?   
 No data is available on the usual length and cost of proceedings concerning the provisional judicial 
measures pertaining to intellectual property rights.   
 In general, it can be said that the length of the proceedings is, by the very nature of the measures, 
short. The proceedings are only summary (" Summarverfahren ") (Article 248(d) CPC);  the judge 
who investigates the proceedings decides alone, and certain conditions which must be satisfied in ordinary proceedings are not required (for example, the imminence of the danger does not have to be proven but only made to appear plausible). Th e length also depends on the kind of provisional 
measures requested and the period of urgency. Finally, evidence must be provided in the form of 
physical records. Other evidence is only admissible in certain cases (Article 254 CPC)   
The cost of the proceedings can vary from one Canton to another and can depend on both the 
complexity of the particular case and the amount involved in the dispute.    
 (b) Administrative measures  
 14. Reply to the above questions in relation to any administrative provisional 
measures.   
 
The Swiss Federal Institute of Intellectual Property cannot order provisional measures. It cannot, either on its own initiative or at the request of a party, provisionally cancel a registration, since this 
would not be compatible with the purpose of the IPR registers (public confidence in documents). A 
party that wishes to obtain provisional measures must request them from the judicial authorities.    
In principle, within the framework of the opposition procedure, the Federal Administrative Court 
may, after receiving the appeal document, order provisional measures, on its own initiative or at the request of a party, provided that such measures are necessary in order to maintain provisionally intact a de jure  or de facto situation (see Article 56 LPA). However, this possibility has remained 
theoretical where IPRs are concerned since the de jure  or de facto situation is not affected by the 
Institute's decision if a party has lodged an appeal against that decision (see reply to question 9.1).  
An administrative measure comparable to a provisional measure ( inaudita altera parte ) is the one 
taken by the Customs Authorities when suspending the release into free circulation of goods suspected of infringing an intellectual property right (see below replies to questions 15 et seq .). 
 
Special requirements rela ted to border measures 
15. Indicate for which goods it is possible to apply for the suspension by the customs 
authorities of the release into free circ ulation, in particular whether these 
procedures are available also in respect of goods which involve infringements of 
intellectual property rights other than counterfeit trademark or pirated copyright goods as defined in the TRIPS Agreemen t (footnote to Article 51). Specify, 
together with relevant criteria, any imports excluded from the application of such 
procedures (such as goods from another member of a customs union, goods in transit or de minimis  imports). Do the procedures apply to imports of goods put on 
the market in another country by or with the consent of the right holder and to 
goods destined for exportation?   
 An application may be lodged by the right holder to the Customs Authorities to suspend the release 
into free circulation of goods if he has valid grounds for suspecting that the importation , exportation 
or transit  of goods infringing an intellectual property right covered by the border measures provisions 
may take place.   
 
In addition to counterfeit trademark goods and pirated copyright goods, , Swiss law also provides for border measures in respect of goods infringing the rights in relation to geographical indications, 
industrial designs, patents, and the topographies of integrated circuits.  These border measures are 
specifically governed by the following provisions:    - Articles 75 to 77 h of the LDA and Articles 18 to 21 of the ODAu; IP/N/6/CHE/2 
 
- 18 - 
 
   
- Article 12 (which refers back to Articles 75 to 77 h of the LDA) of the LTo and Articles 16 to 
19 of the OTo; 
 
- Articles 70 to 72 h of the LPM and Articles 54 to 57 of the OPM; 
 - Articles 46 to 49 of the LDes and Articles 37 to 40 of the ODes; 
 
- Articles 86 a to 86k of the LBI and 112-112 f of the OBI; 
 - Articles 1 to 5 and Annex 1 (tariff) to the Regulation on Charges levied by the Customs 
Authorities.   
 The procedure applies also to goods stored in a Swiss customs warehouse . With regard to patent 
rights and goods in transit, Customs Authorities will only take action if a right holder can 
demonstrate that he is entitled to prevent importation into the country of destination (Article 8(3) LBI).   
 
Swiss Law does not provide for a de minimis exception. Customs Authorities may act also against small consignments and on infringing goods intended for private use. However, if Customs Authorities confiscate goods intended for private use, no criminal liability will apply.  
 
These customs procedures do not apply, however, to imports of goods put on the market in another country by or with the consent of the right holder. 
 
16. Provide a description of the main elem ents of the procedures relating to the 
suspension of the release of goods by customs authorities, in particular the 
competent authorities (Article 51), the requirements for an application (Article 52) 
and various requirements related to the du ration of suspension (Article 55).  How 
have Articles 53 (security or  equivalent assurance), 56  (indemnification of the 
importer and of the owner of the goods) and 57 (right of inspection and 
information) been implemented?   
 With regard to the requirements which must be met by an application for suspension of the release 
of goods, the Customs Authorities provide interested groups with instructions on the procedure to be 
followed.
5 The request must contain certain information:  data on the IPR holder, the person entitled 
to use it or his representative, a copy of the registration certificate, circumstantial evidence which 
suggests that counterfeited products are being imported, exported, in transit or stored in a Swiss 
customs warehouse, a precise description of the goods, if possible details of the counterfeiting methods, the characteristics of the counterfeit or imitated goods, the firms involved (carrier, importer, etc.) and the consignments allegedly containing illegal products. Furthermore the request 
must contain a declaration by the applicant as to whether or not they wish that the Costumes 
Authorities send samples of the counterfeit goods to the right holder, destroy counterfeit goods, and – if design or trade mark rights are concerned – retain counterfeit goods even if they are being 
shipped for personal use only. 
 The Customs Authorities suspend the release into free circulation of such goods for up to ten working 
days as from the date of the request, to enable the applicant to obtain provisional measures.  In duly 
substantiated cases, the Customs Authorities may hold the goods for a maximum of an additional ten working days (Article 77(2) and (3) LDA;  Article 12 LTo;  Article 72(2) and (3) LPM;  Article 48(2) and (3) LDes; Article 86 c(2) and (3) LBI). If it is established, prior to the expiry of 
these time-limits, that the applicant is unable to obtain provisional measures, the goods are released 
immediately (Article 20(3) ODAu;  Article 18(3) OTo;  Article 56(3) OPM;  Article 39(3) ODes; 
Article 112 b(3) OBI). 
 
In order to protect the defendant or third parties from damages, the Customs Authorities may require a liability declaration or – in justified cases – an appropriate security or equivalent assurance 
                                               
5 For information see the fact sheet on the provision of assistance by the Federal Customs 
Administration in the sphere of Intellectual Property Rights" under:  
http://www.ezv.admin.ch/zollinfo_firmen/04202/04284/04299/index.html?lang=en  IP/N/6/CHE/2 
 
- 19 - 
 
  from the applicant (Article 77 h LDA;  Article 12 LTo;  Article 72 h LPM;  Article  49 LDes;  Article 86 k 
LBI).  The applicant is authorized to examine the goods during their suspension. The person entitled to 
dispose of the goods (owner, shipper, etc.) may also take part in this examination to protect trade or 
industrial secrets (Article 77 b LDA; Article 72 b LPM; Article 48 b LDes; Article 86 e LBI; Article 12 
LTo). 
 
17. Describe provisions governing the length and cost of proceedings.  Provide any 
available data on the actual duration of proceedings and their cost.  How long is the validity of decisions by the competent authorities for the suspension of the 
release of goods into free circulation?   
 It takes usually one to two month to examine an application for suspension of the release of goods. 
The application is normally valid for two years unless made for a shorter period. A fee of between 
SwF 1'500.- and SwF 3'000.- is charged for the processing of applications. Each application may be renewed if a fee between SwF 500.- and SwF 1'500.- is paid (Regulation on Charges levied by the 
Customs Authorities, RS 631.035).   
 Once the application has been examined and found valid, the Customs Authorities may hold the goods in question for up to ten working days from the date of the notification. In duly substantiated 
cases the Customs Authorities may hold the goods for a further ten days maximum. The holding and 
the notification costs SwF 50.- at least.   
During this time, the applicant must obtain provisional measures from a civil judge. Failing this, the 
goods are immediately released.      
18. Are competent authorities required to act upon their own initiative and, if so, in 
what circumstances?  Are there any special provisions applicable to ex officio  
action?   
 
The Customs Authorities have the authority to draw ex officio the attention  of the right holder to 
certain consignments which are suspected of infringing relevant intellectual property rights (Article 75 LDA;  Article 12 LTo;  Article 70 LPM;  Article 46 LDes;  Article 86 a LBI). After the 
notification, the IPR holder has to submit an application (see reply to question 17) to the Customs 
Authorities  within three days. If he fails to do so, the goods are released.   
19. Describe the remedies th at the competent au thorities have the authority to order 
and any criteria regulating their use.   
 If the applicant has placed an order of destruction, the Customs Authorities will notify the person 
entitled to dispose of the goods accordingly. Customs Authorities have the authority to destroy the 
counterfeit goods given either the consent of the person entitled to dispose of the goods or if that person does not voice any opposition to their destruction within ten days after having received the 
notification from the Customs Authorities. Criminal procedures are, at first instance, a matter for the 
Cantonal Authorities (see Article 73(1) LDA;  Article 69 LPM;  Article 45 LDes;  Article 85(1) LBI;  Article 51 LPOV Article 27(1) LCD. See also answers to questions 20 ss. hereafter). 
 
20. Specify the courts which have jurisdiction over criminal acts of infringement of 
IPRs.   
 
20.1 Criminal proceedings are regulated under federal legislation. The Swiss Criminal Procedure 
Code (CPP) governs the prosecution and adjudication by the federal and cantonal criminal justice authorities of offences under federal law (Article 1(1) CPP) unless the special intellectual property 
laws contain specific provisions (see Article 1(2) CPP). Each Canton designates for the whole of its 
territory the authorities responsible for the proceedings and passing of judgment in cases of infringement (see Article 14 CPP). If there is a breach of federal law, appeals on a point of law 
against the cantonal judgments may be made to the Federal Supreme Court (Articles 80 and 95 
LTF).  20.2 The competent authority for conducting the proceedings and passing judgment on an IPR 
infringement is the authority located in the place in which the infringer acted. If only the place in IP/N/6/CHE/2 
 
- 20 - 
 
  which the result occurred is in Switzerland, the competent authority is the one which has jurisdiction 
over that place (see Article 31(1) CPP). With regard  to patents the law allows the plaintiff to choose 
between the place in which the perpetrator acted and that in which the result occurred (see Article 84(1) LBI). If the perpetrator acted or the result occurred in different places, the competent 
authority is that of the place in which the first investigation was initiated (see Article 31(2) CPP). If 
the infringement was committed abroad or it is not possible to determine where it was committed, the competent authority is that of the place in which the perpetrator of the infringement resides (see 
Article 32(1) CPP). If the perpetrator of the infringement does not reside in Switzerland, the 
authorities at his place of origin have jurisdiction; in the absence of a place of origin, the authorities of the place where the perpetrator of the infringement was found have jurisdiction.  
21. In respect of which infringements of whic h intellectual property rights are criminal 
procedures and penalties available?   
 
Swiss law provides for criminal law protection against infringements of all IPRs and not only against 
the counterfeiting of trademarks and copyright piracy, as provided for in Article 61 of the TRIPS Agreement. Criminal procedures and penalties are available in respect of the following infringements:   
 
- According to Articles 67 et seq . and 70 LDA the following offences are punishable if 
committed intentionally and unlawfully:  using a work under a false name or one which is different from that decided on by the person responsible for the work;  divulging a work;  
modifying a work;  using a work to create a derivative work;  making copies of a work, 
irrespective of the technique used;  offering to the public, disposing of or in some other way putting into circulation copies of a work;  reciting, representing or performing a work, 
directly or irrespective of the technique used, or showing or playing it in a place other than 
that in which it was presented;  to make a work accessible so that other persons at any time or place of their own choice can access it; broadcasting a work by radio, television or similar 
means, either by radio relay, cable or other conductors or retransmitting it by technical 
means the use of which does not fall within the remit of the original broadcasting authority; showing or playing a broadcast work, a retransmitted work or a work, which has been made accessible;  refusing to declare to the competent authorities the source of the copies of 
works in the possession of the person concerned which were made or put into circulation 
unlawfully and refusing to name the addressees and the extent of a distribution to commercial customers;  renting out software;  omitting to mention, in those cases 
prescribed by law (Articles 25 and 28), the source used and, if so designated therein, the 
author;  asserting copyright the management of which is placed under federal supervision (see Article 40 LDA).  
 
- According to Articles 69 et seq . LDA the following offences are punishable if committed 
intentionally and unlawfully:  broadcasting by radio, television or similar means or by radio relay, cable or other conductors a performance by an entertainer;  making sound or video 
recordings of a performance or recording it on  some other data medium;  offering to the 
public, disposing of or in some other way putting into circulation copies of a performance;  retransmitting a performance by technical means the use of which does not fall within the 
remit of the original broadcasting body;  showing or playing a broadcast or retransmitted 
performance or a performance which has been made accessible;  using a performance under a false name or a name other than the perfor mer's name;  reproducing performances, sound 
or video recordings in a way that other persons at any time or place of their own choice can 
access it;  reproducing a sound or video recording or offering to the public, disposing of or in some other way putting into circulation the reproduced copies;  retransmitting a broadcast; making sound or video recordings of a broadcast or recording it on some other data 
medium;  reproducing a broadcast recorded on a sound recording, video recording or 
another data medium or putting into circulation such copies;  refusing to declare to the competent authorities the source and the quantity of a medium on which a performance 
protected under neighbouring rights pursuant to Articles 33, 36 or 37 of the LDA is recorded 
and which has been made or put into circulation unlawfully and is in the possession of the person concerned and refusing to name the addressees and the extent of a distribution to 
commercial customers. 
 - According to Article 69 a LDA the following offences are punishable if committed intentionally 
and unlawfully: circumventing effective technological measures under Article 39 a(2) to 
undertake a statutory unlawful use of works or other objects of protection;  manufacturing, IP/N/6/CHE/2 
 
- 21 - 
 
  importing, offering, selling, or otherwise distributing, lending, entrusting or advertising for 
use or possessing for commercial purposes devices, products or parts, or provides services which: 
 
  1. are the subject of a sales promotion, advertisement or commercial activity aiming 
at circumventing effective technological measures, 
 
  2. have only a limited economic purpose or use other than the circumvention of 
effective technological measures, or 
   3. are primarily designed, manufact ured, adapted, or provided to make 
circumvention of effective technological measures possible or easier; 
   removing or modifying digital information for the exploitation of copyright and related rights 
under Article 39c (2); reproducing, importing, offering, selling or otherwise distributing, 
broadcasting or making perceivable or accessible works or other objects of protection on which the digital information for the exploitati on of rights under Article 39c (2) has been 
removed or altered. 
 - According to Article 11 of the LTo the following offences are punishable if committed 
intentionally and unlawfully:   copying a topography, irrespective of the means used and the 
form which the copy takes;  offering to the public, disposing of, renting out, lending or 
putting into circulation in some other way a topography or importing it for such purposes; refusing to declare to the competent authorities the source of the items which were produced 
or put into circulation illegally and which are in the possession of the person concerned.  
 - According to Articles 61 et seq . of the LPM the following offences are punishable if committed 
intentionally:  infringing someone else's rights to trademarks, by usurping, counterfeiting or 
copying those trademarks or using the usurped, counterfeit or copied trademarks to offer products or put them into circulation, offer or provide services or for advertising purposes, import, export or putting into transit;  refusing to state the source and the quantity of the 
items on which a usurped, counterfeit or copied trademark has been affixed and which are in 
the possession of the person concerned and refusing to name the addressees and the extent of a distribution to commercial customers;  illegally naming products or services with the 
trademark of a third party with a view to deceiving others, thus leading them to believe that 
the products or services are original;  offering or putting into circulation as originals products illegally named using a third party's trademark;  offering or providing as originals services 
named using a third party's trademark;  importing, exporting, putting into transit or storing 
products which the person concerned knew would be offered or put into circulation illegally, with a view to deceive; using a guarantee mark or a collective mark in such a way as to contravene the provisions of the regulation or refusing to state the source of the items on 
which a usurped, counterfeit or copied trademark has been affixed and which are in the 
possession of the person concerned. 
 
- According to Articles 64 et seq . of the LPM the following offences are punishable if committed 
intentionally:  using an inaccurate indication of source or designation of origin;  creating a risk of deception by using a name, address or trademark in connection with products or 
services from another source;  contravening th e requirements relating to the manufacturer's 
identification mark.   
 - According to Article 172 of the Federal Act on Agriculture (RS 910.1) the following offence is 
punishable:  intentionally using, illegally, an appellation of origin or a protected geographical 
indication (i.e. one which has been registered in respect of agricultural and processed agricultural products).   
 
- According to Article 41 of the LDes the following offences are punishable if committed 
intentionally:  using unlawfully a registered design;  colluding in the offences referred to or 
encouraging or facilitating the perpetration of those offences;  refusing to declare to the 
competent authority the source and the quantity of articles in one's possession which are counterfeit and refusing to name the addressees and the extent of a distribution to commercial customers;   
 IP/N/6/CHE/2 
 
- 22 - 
 
  - According to Articles 66 and 81 et seq . of the LBI the following offences are punishable if 
committed intentionally and unlawfully:  using a patented invention (copying is regarded as using);  refusing to declare to the competent authority the source and the quantity of the products in one's possession which have been manufactured illegally and refusing to name 
the addressees and the extent of a distribution to commercial customers;  removing the 
patent mark on a product or its packaging without the consent of the patent holder or licensee;  incitement to commit one of the acts referred to, collaborating in, encouraging or 
facilitating the perpetration of such acts;  disclosing wrong information concerning the 
genetic resources or traditional knowledge of indigenous people as described in Article 49 a 
LBI;  putting up for sale or bringing into circulation one's commercial documents, advertisements of any kind, products or goods bearing particulars designed to lead people to 
believe, wrongly, that the products or goods are protected by the LBI.   
 - According to Articles 48 et seq . of the LPOV the following offences are punishable:  
intentionally and unlawfully acting in breach of the conditions of Article 5 LPOV;  making 
statements in advertising, in one's business documents or when marketing products which may lead people to believe, wrongly, that the product in question is protected;  omitting to 
use the name of the variety if making a business out of selling the material for propagating a 
protected variety;  using in respect of another variety of the same botanical species or a similar species in one's business activities the varietal name of a protected variety or a name leading to confusion with that name;  infringing in any other way the LPOV or the relevant 
implementing requirements.   
 - According to Article 23 LCD the following offence is punishable:  intentionally engaging in 
unfair competition within the meaning of Article 3 LCD (unfair advertising and sales 
techniques and other illegal practices), Article 4 LCD (incitement to breach or terminate a contract), Article 4 a LCD (to bribe someone or to accept a bribe) Article 5 LCD (exploiting 
someone else's work) or Article 6 LCD (infringing industrial or business secrets).  
 - According to Article 162 of the CP the followi ng offence is punishable:  disclosing an 
industrial or commercial secret which one was under a statutory or contractual obligation to 
keep;  the same applies to using such disclosure for one's own benefit or the benefit of a 
third party.   
 
- According to Article 320 of the CP the following offence is punishable:  disclosing a secret 
confided to one in one's capacity as a member of an authority or as an official or which has come to one's notice as a result of one's office or employment (N.B. This general rule of the 
criminal code is also reflected in numerous intellectual property laws and regulations).   
 22. Which public authorities are responsible for initiating criminal proceedings? Are 
they required to do this on  their own initiative and/or in response to complaints?   
 
22.1 With regard to IPR infringements the proceedings and passing of judgment concerning breaches of criminal law are a matter for the cantonal authorities (see Article 73(1) LDA;  Article 69 
LPM;  Article 45 LDes;  Article 85(1) LBI;  Article 51 LPOV;  Article 27(1) LCD; ).  In all Cantons it is 
the police authorities and the public prosecutors which are responsible for initiating criminal proceedings. The public prosecutors direct the police investigations.   
 
22.2 Under intellectual property law criminal proceedings require, as a rule, a complaint from the injured party (Articles 67(1), 68 and 69(1), Article 69a(1) LDA;  Article 11(1) LTo;  Article 61(1) and (2), 62(1) and (3 ), 63(1) and (2) and 64(1) LPM;  Article 41(1) LDes; Article 81(1)  LBI;  Article 48 
LPOV;  Article 23 LCD).  However, if the perpetrator of the offence is acting in a professional 
capacity/at commercial scale, public authorities may initiate proceedings "ex officio" (Article 67(2), Article 69(2), Article 69a(2) and Article 70 LDA;  Article 11(2) LTo;  Article 61(3), Article 62(2),  
Article 63(4), Article 64(2) and 65 LPM;  Article 41(2) LDes;  Article 81(3), Article 81 a, Article 82 
LBI).  
23. Do private persons have standing to initiate criminal proceedings and, if so, who?   
 Under intellectual property law criminal proceedings require, in most cases, a complaint from the injured party (see reply 22.2). Consequently, private individuals are able to initiate criminal 
proceedings. Any injured person may lodge a complaint. If the injured party does not exercise his IP/N/6/CHE/2 
 
- 23 - 
 
  civil rights, his legal representative will be entitled to lodge a complaint. If he is in the care of a 
guardian, it is the tutelary authority which will be entitled to lodge a complaint. If the injured party is over the age of 18 and capable of understanding, he will also be entitled to lodge a complaint. If he dies without lodging a complaint or having expressly renounced the right to do so, his right will pass 
on to each of his close relatives (see Article 30 CP). 
 Where proceedings are undertaken against an infringement "ex officio", the injured party may sue 
for damages.  
 24. Specify, by category of IPR and type of infringement where necessary, the 
penalties and other remedies that may be imposed.   
 
Swiss law provides for the following penalties:  custodial sentence, monetary penalty and fine. The monetary penalty amounts to a number of daily penalty units at a certain amount. The court decides 
on the number of the penalty units according to the culpability of the offender, but no more than 360 
daily penalty units in total.  The court decides on the value of the daily penalty unit according to the personal and financial circumstances of the offender at the time of conviction, but not higher than 
SwF 3'000 (Article 34 CP). The highest monetary penalty is therefore SwF 1'080'000 (360 (daily 
penalty units) x 3'000 SwF). Unless a special IPR law provides otherwise, the highest amount of a fine is SwF 10'000 (Article 106 CP).  
- For breaches of copyrights (Article 67 LDA) and neighbouring rights (Article 69 LDA), as well 
as infringements of the provisions regarding the protection of topographies (Article 11 LTo), a custodial sentence for up to one year or a monetary penalty may be applied. If the 
perpetrator of the offence is acting in a professional capacity, the penalty will be a custodial 
sentence of up to five year s or a monetary penalty.  
 
- for intentionally failing to mention the source used by whoever is legally required to do so or 
by the author if he is design ated to do so (Art icle 68 LDA), a fine is applicable.  
 - for intentionally violating the technical protection measures or digital information for the 
exploitation of copyright (Article 69 a LDA), a fine is applicable. If the perpetrator of the 
offence is acting in a professional capacity, the penalty will be a custodial sentence for up to one year or a monetary penalty. 
 
–  for unlawful enforcement of rights that can only be enforced with an authorisation granted 
by federal authorities (Article 70 LDA ), a fine is applicable. 
 
- for an infringement of the right to a trademark (Article 61 LPM), for fraudulent use of a 
trademark (Article 62 LPM) and for improperly using a guarantee or collective mark (Article 63 LPM), a custodial sentence of up to one year or a monetary penalty may be 
applied. If the perpetrator of the offence is acting in a professional capacity, the penalty will 
be custodial sentence for up to fi ve years and a monetary penalty. 
 
- for importing, exporting, putting into transit or storing products which are unlawfully offered 
for sale or brought into circulation with a view to deceiving others through one's trademark (Article 62(3) LPM), a fine of up to SwF 40'000 is applicable. 
 
- the incorrect use of an indication of source (Article 64 LPM) could result in a custodial 
sentence for up to one year or a monetary penalty. If the perpetrator of the offence is acting in a professional capacity, the penalty will be custodial sentence for up to five years and a 
monetary penalty. 
 - for illegal use of a protected appellation of origin or geographical indication a custodial 
sentence of up to one year or a monetary penalty (Article 172 of the Federal Act on 
Agriculture) is applicable.  If the perpetrator of the offence is acting in a professional capacity, the penalty will be custodial sentence of up to five years or a monetary penalty. 
 
- for infringements relating to the producer's identification mark (Article 65 LPM), a fine of up 
to SwF 20'000 may be applicable.   
 IP/N/6/CHE/2 
 
- 24 - 
 
  - for infringing the provisions governing the protection of industrial designs (see Article 41 
LDes), a custodial sentence of up to one year or a monetary penalty may be applied. If the perpetrator of the offence is acting in a professional capacity, the penalty will be custodial sentence of up to five ye ars and a monetary penalty. 
 
- for infringing the provisions governing the protection of the rights to a patented invention 
(see Article 66 LBI), a custodial sentence of up to one year or a monetary penalty may be 
applied (Article 81(1) LBI). If the perpetrator of the offence is acting in a professional 
capacity, the penalty will be a custodial sentence of up to five years and a monetary penalty.   
 - for disclosing wrong information about genetic resources and traditional knowledge (Article 
81a LBI), a fine of up to SwF 100'000 may be applied.  
 - anyone who offers for sale or brings into circulation his commercial documents, 
advertisements of any kind, products or goods bearing particulars which lead people to 
believe, wrongly, that the products or goods are protected by the LBI will be fined (Article 82(1) LBI). 
 
- for infringement of the provisions regarding the protection of plant varieties (Article 48 
LPOV), a custodial sentence of up to one year or a monetary penalty can be applied. If the perpetrator of the offence is acting negligently, the penalty will be a fine (Article 48(2) 
LPOV). 
 - for misleading advertising and other offences (Article 49 LPOV), a fine is applicable. 
 
- for unfair competition (Article 23 LCD), a custodial sentence of up to three years or a 
monetary penalty is applicable. 
 
Swiss law also provides for other remedies. For instance:    - A judge may order the seizure or confiscation of items and instruments which have been or 
were to be used in committing an IPR infringement or which are the result of an 
infringement, and of tools and other resources intended primarily for manufacturing these products (Article 69 CP;  Article 68 LPM;  conversely Article 72 LDA;  Article 44 LDes;  
Article 69(1) LBI;  Article 50 LPOV). A judge may order that the confiscated items or 
products be rendered unfit for use or destroye d (Article 69(2) CP; Arti cle 69(1) LBI).  Once 
they have been completed, works of architecture may not be confiscated (Article 72 LDA).   
 
- If, as a result of a misdemeanour or felony, a person suffers damage which is not covered by 
any insurance and the offender is not expected  to indemnify the injured party, the judge 
awards the injured party, at its request, up to the amount of the damage found by the courts 
or by agreement with the injured party (Article 73 CP):   
 (a) the amount of the monetary penalty or fine paid by the convicted person; 
 
(b) the items and assets which have been confiscated or the proceeds of liquidating them, after 
deduction of expenses; 
 
(c) the claims for compensation;  (d) the amount of the precautionary guarantee . 
 
- If the public interest or that of the injured party so requires, the judge may order the 
publication of the criminal judgment in one or more newspapers at the expense of the 
convicted person (see Article 68(1) CP;  Articles 70 and 82(2) LBI). 
 - Where a misdemeanour or felony has been committed in the exercise of a professional, 
industrial or commercial activity and the offender has, because of this offence, received a 
custodial sentence of more than six months or a monetary penalty of more than 180 daily units, the judge may, if there is reason to fear further abuses, prohibit the convicted person from carrying out that professional, industrial or commercial activity for a period of between 
six months and five year s (Article 67(1) CP). IP/N/6/CHE/2 
 
- 25 - 
 
   
25. Describe provisions governing the length and any cost of proceedings.  Provide any 
available data on the actual duration of proceedings and their cost, if any.   
 
The application of criminal law in intellectual property matters is exclusively a matter for the 
Cantons.  
The criminal justice authorities are obliged to commence criminal proceedings immediately and 
conclude them without unjustified delay (Article 5 CPP). Furthermore, certain stages of the proceedings must be completed within precise time-limits. Mention should also be made of the principle of promptness, deduced from Articles 29 Cst and 6 CEDH, covering a particular kind of 
formal miscarriage of justice and violation of the right to be given a hearing. Finally, according to 
Article 97 CP the statute of limitations is 30 years if the offence is punishable by a lifetime custodial sentence, fifteen years if the offence is punishable by a custodial sentence of more than three years 
and seven years for all other offences. If the offence is punishable by a fine, the statute of limitations 
applying to the principal penalty prevails over that for ancillary penalties.    
If applicable, the cost of the proceedings is governed by Article 416 et seq.  CPP. The expenses and 
costs are normally borne by the losing party. No statistical data are available on the actual duration or cost of the proceedings.  
 
__________