CMS Expert Guide on Preliminary Injunctions in IP in Switzerland

Under Swiss law, PIs can in principle encompass any court order that is appropriate and necessary to prevent damage from occurring, there is no numerus clausus.

In the field of IP, the following claims are typically subject to such measures, which may be sought cumulatively:

• Provisional Enforcement of Injunctive Relief: Injunctive relief is the most common type of PI in IP litigation. Such orders are designed to prevent ongoing or imminent infringement by prohibiting specific acts, including the production, distribution, or dissemination of infringing goods or content.
• Provisional Enforcement of Removal Claims: These measures serve to provisionally eliminate an unlawful situation. For instance, they may order the temporary removal of potentially infringing products from the market to prevent further harm pending the outcome of the main proceedings.
• Precautionary Preservation of Evidence: Where there is a risk that relevant evidence may be lost, altered, or rendered inaccessible, courts may order PIs to preserve such evidence. This can include, for example, the seizure of internal documents, data, samples or other reference materials.
• Determination of the Origin of Unlawfully Manufactured or Marketed Goods: PIs may also be granted to identify the source of the potentially infringing goods. This typically involves the seizure of documents or other evidence that may help trace the origin or distribution chain of illegally produced or marketed products.
• Preservation of Status Quo: To avoid irreversible legal or factual changes during the pendency of a dispute, PIs may be ordered to preserve the existing legal situation. This can include for example registry restrictions to prevent any unauthorized transfer, alteration, or deletion of IP rights.

No, Swiss law does not mandate any prior out-of-court actions before filing an application for a PI.   

Generally, there is no statutory deadline for filing an application for PI under Swiss law. However, the applicant must demonstrate urgency, meaning that the request should be made promptly after becoming aware of the imminent or actual infringement of its rights. Courts may deny the PI if the applicant delays the application without valid justification, as undue delay can undermine the perceived urgency of the matter. 

Generally, the timeframe for obtaining a PI depends on the urgency and complexity of the case and whether the hearings are ex parte (without hearing the counter party) or inter partes (with both parties heard).

While ex parte proceedings can be issued within a couple of days, inter parte proceedings can take much longer.  

Generally, inter partes PI proceedings can be suspended if both parties agree. However, it must be noted that suspension may compromise the urgency requirements, meaning that such delays can lead to the loss of urgency, which is a prerequisite for the issuance of a PI.  

To obtain a PI, the applicant needs to show credibly that they have a legal position that has been infringed or there is an imminent threat thereof, and that such infringement would cause irreparable damage to the applicant. Furthermore, the applicant needs to show that there is an urgency regarding the matter and that the requested measure is proportional.

Unlike in ordinary proceedings, where a full standard of proof is required, IP proceedings have a lower standard of proof, meaning that prima facie evidence is sufficient.

The Swiss Civil Procedure Code stipulates a closed list of admissible evidence, which includes testimony, physical records, inspections, expert opinions, written statements, and questioning and deposition of the parties. In PI proceedings, evidence must generally be presented in the form of physical records. Other forms of evidence are only admissible, inter alia, if their consideration would not significantly delay the proceedings or if they are necessary to achieve the purpose of the proceedings.

Yes, it is possible to obtain an ex parte PI in cases of particular urgency. This applies where a delay caused by prior notification or a hearing would risk rendering the measure ineffective.

Generally, the losing party bears the court costs and must pay the prevailing party compensation for its legal expenses, as determined by the applicable statutory tariffs.

Courts may require the applicant to provide security to cover potential damages to the counterparty if the PI is later found to be unjustified. This is assessed on a case-by-case basis.

Yes, a PI can be appealed. As a general rule, the appeal does not suspend the effect of the PI, unless otherwise ordered by the court. 

The decision regarding the PI must be appealed within 10 days. However, the proceedings thereafter and their duration depend, inter alia, on the specifics of the case and the appellate instance involved. 

Generally, a PI becomes effective immediately at the time of the decision. 

Courts can enforce compliance through a variety of measures, including fines, ordering coercive measures such as seizure of infringing goods, authorizing substitute performance or initiating criminal proceedings.

Yes, a counterparty affected by the PI that is later found unjustified may seek compensation for damages suffered due to the PI. The applicant of the PI may be required to provide a security deposit to cover potential damages, especially in ex parte proceedings (see also Question 9).

Yes, to obtain a permanent injunction, the applicant must initiate ordinary proceedings on the merits. If the PI was granted before such proceedings were initiated, the court usually sets a deadline for the applicant to file the main action. Failure to file the main action within such a deadline leads to the lapse of the PI.