Preliminary measures in civil law (Art. 65 CopA) will provide the claimant with interim protection in a legal action until a final decision is made. The enforcement of rights by a person whose rights are infringed or threatened can be a delicate matter, in particular due to time limits in ordinary proceedings.
E.g. at the end of the main court proceedings, the request for protection may become irrelevant because the defendant may have destroyed evidence. Therefore, without expedient intervention, there is a risk of causing harm which is not easily reparable.
This is why the law has set out provisional measures which can be requested before the main court proceedings. Before that, the defendant should be heard, however. But in cases of special urgency, and in particular where there is a risk that the enforcement of the measure will be frustrated, the court may order the interim measure immediately and without hearing the opposing party (Art. 265 Swiss Civil Procedure Code – CPC).
The conditions of a preliminary measure are:
Preliminary measures only apply if the claimant cannot wait until the main court ruling. Therefore, the claimant has to act as quickly as possible.
If the claimant does not do so, the court may believe there is an abuse of rights and not grant the requested measures. For example, if the claimant waited for too long and could have brought ordinary proceedings while the infringement was being committed.
2. Prima facie evidence
The claimant does not have to bring evidence when they apply for preliminary measures. Often, they are even not able to bring evidence at that level. Therefore, the court requires that the applying person brings “prima facie evidence” for an occurred or an imminent infringement of their copyrights and that there is a risk that the infringement will cause irreparable damage.
Preliminary measures can be requested for the following objectives (Art. 65 CopA):
● to secure evidence;
● to establish the origin of goods unlawfully manufactured or placed on the market;
● to preserve the existing state of affairs;
● to provisionally enforce claims for injunctive relief and remedy infringement.
The objectives set out in Art. 65 CopA are not exhaustive.
They can form the basis for a preliminary request:
- the seizure of copies of the work(s) in question,
- an expert inspection,
- the request to draw up an inventory,
- the collection of information to establish the origin, quantity and recipients of the disputed goods,
- the prohibition of the use, manufacture and interference in the trading of pirated works,
- the seizure of counterfeit copies and any materials used to produce them.
Thus, the judge can order the seizure and forfeiture of documents or samples to preserve the evidence before or during court proceedings for copyright infringement or even prevent (temporarily) the illegal use of a work which would cause harm to the copyright holder.
The court may order any interim measure suitable to prevent the imminent harm, in particular to remedy an unlawful situation (Art. 262 CPC) and these measures have to be in accordance with the principle of proportionality, which means that the court has to order the least restrictive preliminary measure possible.
If the sole concern is to preserve the financial entitlements of the claimant before court proceedings rather than to prevent the alleged illegal use of a work by ordering a prohibition or remedy, the judge can order the opposing party to provide appropriate security to safeguard its rights (art. 261 para. 2 CPC).
GOOD TO KNOW
If, after the summary proceedings for preliminary measures, the principal action is not yet pending, the court will set a deadline within which the applicant must file their action, subject to the ordered measure becoming automatically ineffective in the event of default.
This is not required if the summary proceedings only aim to request a precautionary taking of evidence as set out in Art. 158 CPC.
In this case, evidence is simply taken, for example, by requesting an expert opinion if the applicant shows credibly that the evidence is at risk or that it has a legitimate interest.
For example, if it is feared that documents or counterfeit goods might be destroyed during ordinary proceedings, it is possible to request the court before or during the proceedings to order an expert opinion to immediately determine the characteristics of the disputed goods.
It is not sufficient to allege that a work has been used unlawfully and that this use threatens to cause serious financial loss or damage to the claimant’s reputation. The claimant needs to show the court that the facts and consequences they are claiming are plausible by providing evidence. Spontaneous written testimonies or expert reports can prove useful for showing the claims to be plausible, but they must be subjected to scrutiny in court at a later date.
If there is a risk that the opposing party could be concealing counterfeit goods that it is suspected of possessing during a legal proceeding, the alleged injured party can request the court to seize the goods before a hearing.
Preliminary measures in civil law (Art. 65 CopA) will provide the claimant with interim protection in a legal action until a final decision is made. The law has set out preliminary measures which can be requested before the main court proceedings to establish an infringement and evaluate its extent (expert inspection, request for information, etc.) or remedy an infringement, thus limiting the damage suffered (seizure of counterfeit copies, manufacturing materials).
The preliminary measures must be subject to a prior hearing with the opposing party. However, in cases of special urgency, and in particular where there is a risk that the enforcement of the measure will be frustrated, the court may order the interim measure immediately and without hearing the opposing party.
There is a distinction between court proceedings and summary proceedings, especially when it comes to preliminary measures. In court proceedings, the claimant must provide conclusive evidence of their rights. With preliminary measures in summary proceedings, the claimant only needs to show that their rights are plausible. In both cases, a statement from the alleged injured party alone is never sufficient.
Evidence in summary proceedings is usually provided in the form of physical records.
In these proceedings in particular, other forms of evidence are admissible as long as the taking of evidence does not substantially delay the proceedings.
The claimant must show that the facts and consequences they are claiming are plausible by providing the court with documentary evidence. Spontaneous written testimonies or expert reports can prove useful for showing the claims to be plausible but they must be verified at a later date.
The claimant must act as soon as possible. If the claimant delays, he risks being suspected of having committed an abuse of rights at a later date.
If the principal action is not yet pending, the court shall set a deadline within which the applicant must file his action, under penalty to the ordered measure. This is not required if the summary proceedings only aim to request a precautionary taking of evidence.