Facts
The Société des Produits Nestlé SA, Nestec SA, and Nestlé Nespresso SA (plaintiffs) requested the Commercial Court of the Canton of Zurich to prohibit Denner AG and Alice Allison SA (defendants) from manufacturing, storing, offering, selling, or otherwise distributing portion packs containing roasted and ground coffee in Switzerland. The proceedings were referred to the Federal Patent Court.
The part-time judge Peter Rigling was designated as a specialist judge. It turned out that his law firm, Troesch Scheidegger Werner AG, represented Migros France in a trademark matter. The plaintiffs requested that Judge Rigling be recused, as they feared he might be biased.
The Federal Patent Court rejected the request, whereupon the plaintiffs appealed to the Federal Court. They argued that Judge Rigling was biased due to the mandate relationship between his law firm and Migros France, as Migros France is a subsidiary of the Migros-Genossenschafts-Bund, which in turn controls Denner AG.
Considerations
The Federal Court overturned the decision of the Federal Patent Court and recused Judge Rigling. It found that the mandate relationship between Troesch Scheidegger Werner AG and Migros France created the appearance of bias, as the Migros-Genossenschafts-Bund has a significant interest in the outcome of the patent infringement proceedings.
The court held that the guarantee of a constitutional judge (Art. 30 para. 1 Cst.) is violated if, from an objective perspective, circumstances exist that create the appearance of bias or the risk of prejudice. It is sufficient if circumstances exist that, from an objective perspective, create the appearance of bias and…