WEDNESDAY, 25 NOVEMBER 2009
New proposed cancellation action for non-use in Switzerland
The draft legislation concerning protection of "Made in Switzerland" also contains an (unrelated) proposal for a cancellation action for non-use of a mark, to be filed with the Swiss IPO.
So far, a cancellation action for non-use has to be filed with a civil court, in ordinary proceedings. These are lengthy and expensive. The proposal seeks to institute a fast-track cancellation action to be filed with the Swiss IPO (Federal Institute for Intellectual Property). The claimant has to make credible ("glaubhaft machen") that the mark has not been used for the goods claimed within the last five years. The mark is cancelled unless the trade mark owner makes credible that the mark has been used or that he had good reasons for non-use. The standard of proof is therefore lower - on both sides - than in ordinary civil proceedings. Cancellation actions for other reasons, namely absolute grounds of refusal, still have to be filed with a competent civil court (if cancellation for non-use is sought, the claimant may choose whether to file with the IPO or with a competent civil court).
The date of the coming into effect of the proposed legislation is not yet known.
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