Facts
Parties: Plaintiff (Hilti Aktiengesellschaft) and Defendant (Milwaukee Electric Tool Corporation).
Court: Commercial Court of the Canton of Bern, Decision of October 1, 2007.
Main Case: The plaintiff is the holder of the Swiss color trademark Red (RAL 3020) for tool cases and an international three-dimensional trademark for metal cases. She sued the defendant to prohibit the latter from offering or advertising hammer drills with red cases. The defendant filed a counterclaim to have the invalidity of the Swiss extension of protection of the international trademark established.
Interim Decision: The Commercial Court determined the relevant circles of trade and ordered two surveys to examine the trademark's market penetration.
Appeal: The plaintiff appealed to the Federal Supreme Court against the interim decision, seeing an irreparable legal disadvantage.
Considerations
According to Art. 93 para. 1 lit. a FSCA, independently opened preliminary or interim decisions can be challenged if they can cause irreparable disadvantage. Such a disadvantage must be of a legal nature and cannot or cannot be fully remedied by a favorable final decision.
The appellant argued that the interim decision constituted a legal disadvantage, as the prolongation of the proceedings and the further dissemination of the allegedly trademark-infringing products could lead to market or allocation confusion. The Federal Supreme Court did not follow this argument, as the mentioned disadvantages were of a factual nature and did not fall under Art. 93 para. 1 lit. a FSCA.
The Federal Supreme Court emphasized that a legal disadvantage within the meaning of Art. 93 para. 1 lit. a FSCA must exist, which cannot…