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.