In September 2026, it was announced that the case would now proceed to the Swiss Federal Supreme Court. PANArt filed an appeal because eight Handpans from five Swiss manufacturers were ruled not to infringe copyright. At the same time, the HCU has also filed an appeal regarding protection and copyright infringement, including under German and Dutch law. The attorneys representing the companies Thomann, Hage, World of Handpans, and others have not filed their own appeals.
It is important to note that no cross-appeal is possible before the Swiss Federal Supreme Court. Each party must therefore decide for itself within the 30-day appeal period whether to challenge the ruling, without knowing whether – or in what form – the opposing party will file an appeal.
The absence of a cross-appeal gives rise primarily to the following consequences and tactical considerations:
- One cannot “wait and see, then follow suit.”
A party that is largely satisfied with the ruling cannot wait to react until the opposing party challenges it. This applies primarily to PANArt, which, according to the court, won approximately 95% of the case. If PANArt also wishes to challenge the works that were classified as non-infringing (the “borderline cases”), it must file an appeal itself within the deadline. If it fails to do so and only the HCU side files an appeal, PANArt can only defend its position but can no longer improve it. - Appealing carries almost no risk in terms of substance; not appealing does.
The Federal Supreme Court may not go beyond the claims made by the appealing party (Art. 107(1) BGG). Therefore, a party that appeals alone can hardly end up in a worse position substantively than it was after the Commercial Court’s ruling. The main risks are costs and time. Conversely, a party that does not appeal risks the opposing side doing so, leaving it with no option but to lose.
This creates a kind of prisoner’s dilemma. Both sides have an incentive to file an appeal “as a precaution,” even if both could actually accept an end to the proceedings.
- The opposing party is limited in its defense.
Although the respondent may present alternative grounds against the judgment in the event that the Federal Supreme Court upholds the appeal, However, these must remain within the scope of the subject matter of the appeal proceedings. Additional claims of their own are inadmissible. Thus, they can support the outcome with other arguments, but cannot gain anything beyond that.
Since the opposing party’s intentions are unknown, public statements, newsletters, or settlement offers during the filing period could serve to send signals or influence the opposing party. However, such statements are not binding. To my knowledge, there were also attempts by the HCU to contact PANArt within the appeal period, but these were unsuccessful.
What remains at the moment is the realization that there is already a group that is, as of today, the clear winner of this legal dispute: namely, the attorneys – on both sides.
It is also interesting to note that both parties to the conflict are being very tight-lipped regarding their claims. Neither PANArt nor the HCU has published anything on the matter at this time (September 26, 2026). But that will surely happen sooner or later….
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