The Swiss Trademark Act, the Patent Act, the Design Act and the Copyright Act provide that intellectual property rights can be enforced in civil proceedings as well as in criminal proceedings. Both ways are of equal value. The injured party is therefore free to choose.
If the infringer is not acting commercially, the time limit for filing an application under criminal law is three months (!; Art. 31 Swiss Criminal Code, SCC); in patent law it is six months (Art. 81 Patents Act, PatA). If the infringer acts commercially, it is even an official offence that must be prosecuted ex officio and therefore does not have an application period.
The costs that a plaintiff must bear in civil proceedings should he lose in whole or in part are calculated in relation to the amount in dispute, i.e. the value that the case has for the plaintiff. Since it is usually difficult to measure the value of a matter in dispute in an intellectual property case, the Swiss courts often apply a rule of thumb. If the value in dispute cannot really be calculated in an intellectual property case, the courts assume a value of at least CHF 50’000 to CHF 100’000 for insignificant intellectual property rights and a value of more than CHF 100’000 for significant intellectual property rights (s. Johann Zürcher, Der Streitwert im Immaterialgüter- und Wettbewerbsrechtsprozess, sic! 7/2002 p. 493/504). This means that in a civil action under intellectual property law, where the amount in dispute cannot actually be calculated, a value of at least CHF 50’000 is assumed. The Supreme Court of the Canton of Zurich publishes a fee calculator on its homepage 👉 fee calculator (excl. in Ger.). If one enters a value in dispute of CHF 50’000, the resulting legal costs (court costs, costs of the opposing lawyer) amount to approximately CHF 13’000. To this must be added one’s own lawyer’s costs. In this case, there is a risk of litigation costs of at least CHF 20’000. This is a very high amount, especially for an SME.
For this cost reason in particular, intellectual property rights can also be enforced in criminal proceedings. Even if the plaintiff also has to bear costs in a criminal case if he loses, experience shows that these are much lower. In addition, in criminal proceedings, state means of coercion, such as house searches, can be used to gather evidence and, as a rule, criminal proceedings exert a great deal of pressure on the opposing party, which is likely to make them more willing to settle the matter amicably, i.e. within the framework of an agreement.
Important note! The fair trade law (UWG) also provides for a choice of civil or criminal enforcement for the special offences under Art. 3 ff. UWG. However, an offence under fair trade law is never an official offence. This means that in the case of enforcement through criminal proceedings, the three-month application period always applies (Art. 23 UWG i.c.w. Art. 31 SCC).