IP/N/6/CHE/2

Switzerland

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).

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 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). Before 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 personal 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).

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).

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).

5.1 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. 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 profits, and expenses, including 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 business 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 entitlement 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 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).

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).

7.1 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 efforts 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 plaintiff 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 situation. According to the decisions of the Federal 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 authorities, 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.

8.1 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 scale 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 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 than 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.

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 administrative 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). 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 59c LBI). Anyone may oppose the registration based on absolute grounds for refusal (Article 1a, 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 the 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 59c 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 anyone 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; 86b LBI). 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 11a 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 experts. 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). 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 parties 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 ordered 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 Compensation in respect of Administrative Procedures of 10 September 1969 (RS 172.041.0). 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 administrative 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 damage in respect of which the institution is not able to provide compensation. It can as can the institution take action against the negligent official (Article 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). 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 pointed 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 46a LPA).

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. 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"4 principle. 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).

11.1 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).

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 party 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 (Article 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.

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). The 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.

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.).

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 77h of the LDA and Articles 18 to 21 of the ODAu; Article 12 (which refers back to Articles 75 to 77h of the LDA) of the LTo and Articles 16 to 19 of the OTo; Articles 70 to 72h 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 86a to 86k of the LBI and 112-112f 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

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 86c(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 112b(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 from the applicant (Article 77h LDA; Article 12 LTo; Article 72h LPM; Article 49 LDes; Article 86k 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 77b LDA; Article 72b LPM; Article 48b LDes; Article 86e LBI; Article 12 LTo).

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.

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 86a 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.

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).

20.1 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 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.

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 performer'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 69a LDA the following offences are punishable if committed intentionally and unlawfully: circumventing effective technological measures under Article 39a(2) to undertake a statutory unlawful use of works or other objects of protection; manufacturing, 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, manufactured, 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 exploitation 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 the 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; 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 49a 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 4a 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 following 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).

22.1 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 81a, Article 82 LBI).

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 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.

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 years 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 designated to do so (Article 68 LDA), a fine is applicable. for intentionally violating the technical protection measures or digital information for the exploitation of copyright (Article 69a 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 five 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. 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 years 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 destroyed (Article 69(2) CP; Article 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 years (Article 67(1) CP).

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.