1. The concept of "legal interest" as follows from Art. 52 TMA must be understood broadly and does not exclude the consideration of a de facto interest; like Art. 59(2)(a) of the CCP, Art. 52 TMA in fact enshrines the requirement of an interest in the specific decision worthy of protection. 2. Such an interest exists when there is uncertainty as to the legal relationship between the parties, when a finding concerning the existence and purpose of the legal relationship could eliminate this uncertainty and when its persistence hinders the plaintiff's freedom of decision to the point of becoming unbearable. 3. The criterion of an interest worthy of protection is subject to less stringent requirements for an action for invalidation than for other actions for a declaratory judgement, whether positive or negative. 4. Even if parties do not compete on Swiss territory (e.g. by not distributing any products related to the trade mark in Switzerland), they have a real (concrete) interest in bringing an action for invalidity of a (basic) Swiss trade mark before a Swiss civil court as it is only in this way that they can benefit from the effects of the "central attack" provided for by the Madrid System. The admission of such an action will have a direct effect on disputes between the parties in the countries designated by the defendant's international registration. 5. The mechanism of the "central attack" has been set up precisely to allow, independently of possible actions taken abroad, the invalidation of the international registration and, indirectly, to eliminate the national trade marks (or the national procedures) resulting therefrom in the countries designated by the trade mark owner. 6. The fact that "the proceedings are always pending before offices and not courts" is not decisive, since if the "central attack" is successful in the country of origin, all trade marks filed or registered in the countries designated by the international registration are invalidated, regardless of whether they are the subject of judicial or administrative proceedings before the foreign national office.
展开▼
