Belser Altorfer & Partner
In recent years, the Swiss Federal Supreme Court has issued two important decisions in the area of parallel imports, ruling that copyright (the Donkey Kong Land - decision of 1998) and trademark laws (the Chanel - decision of 1996) cannot be used to prohibit the import of goods that have already been put on the market abroad. The Commercial Court of Zurich has now had to decide whether patent law may be used to prohibit the parallel import of goods protected by a patent.
In the case at issue, Kodak SA, exclusive distributor of Kodak products in Switzerland and owner of a patent on photographic products of the Kodak Group, brought a patent infringement suit against a Swiss defendant which mainly purchased its Kodak products from authorized Kodak-dealers, but which had also purchased two types of Kodak products in the UK, where they had been sold with the consent of the Kodak Group. The Commercial Court of Zurich rejected the plaintiff's claims, holding that, since neither the Unfair Competition Act nor trademark or copyright laws protect selective distribution systems, patent laws should similarly not be allowed to prevent parallel imports which would otherwise be in compliance with Swiss law. In reaching its decision, the Commercial Court placed considerable weight on the argument that the exhaustion of intellectual property rights should be subject to a uniform treatment.
Kodak has appealed against the decision of the Commercial Court. Therefore, it will be up to the Swiss Federal Supreme Court to decide on this important question concerning parallel imports.