What is your greatest professional achievement to date?
In addition to successes for our clients in contentious disputes and in the conception of IP strategies, my greatest professional success is that I was allowed to contribute to the establishment of Switzerland’s leading IP team.
I am also somewhat proud to have co-founded the Swiss Institute for the Protection of Intellectual Property INGRES and contributed to it being the most active and internationally respected association in intellectual property.
What are the biggest challenges rights holders face when seeking protection in Switzerland, and what advice would you give to them?
With the exception of the Federal Patent Court, all other Swiss courts and even the four courts of commerce in Zurich, Aarau, Bern and St Gallen are not specialised courts. A Swiss peculiarity is the settlement hearing, which almost always takes place after the first exchange of writs and is successful in more than 70% of all cases. This system enables the parties to find an autonomous solution to their problem relatively quickly and cost-effectively. For the plaintiffs, this means that the facts of the case and the legal position are already set out as comprehensively as possible in the statement of claim.
In a volatile economic climate, how do you ensure that filings and prosecution are effective while keeping costs down?
The be all and end all of efficient IP prosecution is an experienced team of motivated specialists and careful advice right from the beginning in order to avoid unnecessary problems and subsequent costs later on. Cutting-edge IT can do a lot to keep the time required as low as possible.
There has been a renewed focus on GIs since the 2021 EU agreement. What advice do you have for rights holders looking to protect their brands using this right?
GIs have many advantages that should definitely be taken advantage of. However, careful coordination with and supplementation by other IP rights, especially trademark rights, is crucial.
The EU Digital Services Act has sought to address platform liability for illegal content, but when it comes to preventing infringing and counterfeit goods online, many in the United States believe that it is up to the courts and the industry itself to pave the way forward. What are the strengths and weaknesses of this non-legislative approach?
Because of the time it takes to enact them and the speed of new technologies, new laws are usually outdated by the time they are enacted. We also have a lot of experience in fighting product piracy with out-of-court methods.
How has your role as a specialist judge on IP cases at the Zurich Court of Commerce influenced your view of the Swiss IP landscape?
The lived right is decisively shaped by the courts. It is satisfying for me to be able to directly incorporate my special knowledge and experience in this way. Conversely, I learn a lot from my work as a commercial judge for my work as a lawyer and arbitrator.
You are heavily engaged with brands in your practice. How are you handling the growing rise in online counterfeiting and the post-pandemic bounce-back of offline counterfeiting – and what do these strategies look like?
We see the majority of growing online counterfeiting on the big internet sales platforms. Instead of focusing on notice and take-down procedures, we concentrate on demanding the legal responsibility of the platform operators, who have the technical tools at hand to prevent counterfeit offers. For tackling big-scale offline counterfeiting, as well as the backers of online counterfeiting, we focus on internationally coordinated prosecution, such as that provided by Europol.
How do you predict the blockchain domain challenge will evolve in the next 12 months?
The crypto winter’s hit to digital assets and recent events like the collapse of FTX, Three Arrow Capital, Celsius Network and the Terra crash have undermined the general confidence in blockchain and cryptocurrency. Despite these developments, the Swiss crypto scene has been very busy, innovation has continued and it seems that more solid business models have emerged from the crypto winter. We are increasingly optimistic that, in 2023, this trend will continue and we expect that the grey area of businesses will shrink to the benefit of regulated projects on the one hand and fully decentralised models on the other.
What are three pieces of advice you have for foreign companies attempting to register a trademark in Switzerland?
First, thorough prior research. Second, a lean description. Third, a close exchange with the examiner in case unexpected problems arise.
As the head of intellectual property at your firm, what makes a strong trademark team, and how do you go about building one?
In addition to personality, intelligence and willingness to learn from other team members, clients who simultaneously challenge and trust us are crucial for success.
Head of Intellectual Property
Michael Ritscher is recognised as one of the most experienced and esteemed IP litigators and arbitrators in Switzerland and beyond. He is often at the forefront of precedentsetting cases and has an extensive practice, notably in the fields of life sciences, luxury goods and retail. Mr Ritscher is a reference for companies seeking his support on crossborder contentious affairs involving Swiss, EU and international law.