Facts
The Hilti Aktiengesellschaft, Schaan/FL, is the owner of the Swiss color trademark Red (RAL 3020) CH 540 979 for plastic tool cases for hammer drills for professionals in the construction industry. It filed a lawsuit on September 2, 2005, with the Commercial Court of the Canton of Bern against the Milwaukee Electric Tool Corporation, Delaware/USA, with the requests that the defendant be prohibited from offering, putting into circulation or advertising in Switzerland hammer drills together with cases with a unicolored body in RAL 3020.
The Commercial Court of the Canton of Bern issued a decision on October 1, 2007, in which it determined the relevant circles of trade as buyers and potential buyers of hammer drills and had two surveys conducted in Switzerland among the relevant circles of trade.
The appellant, Hilti Aktiengesellschaft, filed a legal petition with the Federal Court to repeal item 1 of the decision of the Commercial Court of the Canton of Bern of October 1, 2007, and to determine persons in construction companies as the relevant circle of trade.
Considerations
The Federal Court examined the admissibility of the appeal and came to the conclusion that the appellant does not suffer any legal disadvantage due to the contested decision. The contested decision concerns an evidentiary measure which is notoriously costly and regularly also time-consuming. However, these disadvantages are generally of a purely factual nature and are therefore only relevant within the framework of the requirements of Art. 93 para. 1 lit. b FSCA, but not according to Art. 93 para. 1 lit. a FSCA.
The Federal Court found that…