Intellectual property - Details


Applicable law (Intellectual property in general)

 

 

Detailed information


Please refer to the "Applicable Law"-section for specific laws related to:

Patents

Trademarks

Copyrights

Design

Unfair Competition

Computer Programs

 

1. Patents
 

1.1. General information

Patents guarantee their holder the exclusive right to produce, use and sell their invention for a maximum period of 20 years. When this time limit has passed, the invention becomes public and can be freely used. A mere idea is not eligible for patent protection.

An invention must fulfil three criteria in order to qualify for a patent:

  1. Commercial applicability: The invention must be commercially applicable, implementable and reproducible. This corresponds to the requirement of utility as demanded by US law.

  2. Novelty: An invention must be novel and shall not belong to prior art. To decide whether an invention is novel, it must be compared to the state of the art worldwide.

  3. Inventive step/non-obviousness: The invention must not be derived from prior art in an obvious way.

The critical issues are the requirements of novelty and non-obviousness which are tested by reference to prior art. Prior art consists of documentary and other references that reflect the state of technology in a given field. The relevant prior art includes all material dealing with the same technological problem as the one addressed by the invention. The relevant date to determine prior art is the date of the filing of the patent application.

The first step to be taken before filing a patent application is to determine what constitutes prior art as the requirement of novelty is not reviewed by the registration authority. However, the registration authority offers a research service to help applicants determine what constitutes prior art worldwide (the "Prior Art Search for National Patent Application").

There are a number of items which cannot be patented, such as

  • mere ideas, scientific theories, mathematical methods;

  • rules of games, teaching methods and organizational procedures;

  • medical methods used on the human or animal body;

  • plant varieties, animal species and essentially biological methods for breeding plants or animals;

  • computer programs (except programs integral to an invention). In Swiss law, computer programs are protected under the copyright law.

  • inventions the exploitation of which would be contrary to public policy or morality.
     

1.2 Applicable Laws


1.3 Registration of Patents

Protection by Swiss patent law requires registration by the Swiss Federal Institute of Intellectual Property in the Swiss Patent Register. The website of the Institute provides for guidelines and forms (www.ig.ch) also in English.

The applicant has three options for registration:

  1. Application for registration in Switzerland and Liechtenstein with the Swiss Federal Institute of Intellectual Property;

  2. Application for registration in other European countries based on the European Patent Convention (EPC). The EPC allows applicants to obtain protection in over 30 European states, including Switzerland, by filing a single application. Since European patent applications are examined for novelty and inventive step, this way leads to a fully examined patent in Switzerland. The application can be filed either with the European Patent Office in Munich or the Swiss Federal Institute of Intellectual Property.

  3. Application for registration in any of the member-states of the Patent Cooperation Treaty (PCT). This international patent application is subject to an international search by an authority specializing in this area, the results of which are made available to the applicant in an international search report. A guide providing further details of the PCT procedure is obtainable from the World Intellectual Property Organization (WIPO) in Geneva.

It is recommended to retain a specialized patent attorney for assisting with the filing of the application procedure. A list of Swiss patent attorneys can be found on www.ige.ch. Once a patent has been granted in Switzerland, the title is entered into the Swiss Patent Register and published.

A patent will be annulled if:

  • the renewal fees are not paid timely,

  • the patent holder withdraws the patent in writing,

  • a court determines that a patent is void.

The object of a void or cancelled patent becomes common property and can be used by anyone.

 

1.4 Patent infringement

The owner of a patent has the exclusive right to make commercial use of the patented invention. This includes in particular the use and production of the patented invention and the application of the patented method, the public offering and sale of patented goods and the import of such goods. A patent permits the patent holder to prevent others from engaging in certain activities such as making, using or selling any goods within the scope of protection of a previously issued patent. It is the responsibility of patent holders to enforce their rights. This includes monitoring any activities which might fall within the scope of protection of a previously issued patent, determining whether a patent has been violated and taking appropriate legal action.

If the owner of a Swiss patent determines that his patent is being infringed by a newer patent, he may bring legal action against the infringing party in a cantonal civil court of law whose decisions are subject to appeal to the Swiss Federal Supreme Court.

 

2. Trademarks

2.1 General Information

Trademarks are devices by which a merchant identifies his goods or services and distinguishes them from those of others. Trademark protection in Switzerland is based on registration in the Federal Trademark Register. The competent registration authority is the Swiss Federal Institute of Intellectual Property (www.ige.ch).

Trademarks may be of various types and forms. Trademarks may be of two- or three-dimensional or even of acoustic nature. They may consist of words, of combinations of letters or numbers, of pictures or logos. Domain names are not protected by trademark law but subject to separate registration requirements and protection mechanisms.

Besides individual marks, Swiss law also offers the registration of collective marks and certification marks. Collective marks represent the goods or services of an association of manufacturing, commercial or service companies with the aim of demonstrating their membership of this association. A set of rules defines membership criteria for the association, the applicant being entitled to use the mark as a member of the group. Certification marks allow the attribution of certain characteristics (e.g. quality features) to the goods or services so marked. The trademark proprietor guarantees compliance with requirements specified in a set of rules.

Trademarks are protected only for those categories of goods or services for which protection has been sought. Trademarks which have acquired the status of a famous trademark (Art. 15 Trademark Law) are protected for all kinds of goods or services irrespectively of the category for which protection has been sought.

Trademarks will not be registered and the application is rejected by the registration authority (so-called "absolutely impermissible marks") if

  • a trademark belongs to the public domain such as generic or descriptive terms or elementary symbols;

  • a trademark consists of a shape which is functional for the product;

  • a trademark is deceptive or misleading;

  • a trademark is contrary to public order or the law.

A trademark is descriptive if it consists of information concerning the composition, quality, type or place of production, the purpose or price of the goods and other information of a purely descriptive nature.

If a trademark is deceptive in relation to product properties, e.g. origin, composition or quality, it may be deemed either entirely inadmissible for registration or admissible only with an appropriate restriction. The prohibition of deception in relation to origin means that trademarks implying, for example, Swiss origin are protected only for goods produced in Switzerland.

Due to the multilingual nature of Switzerland, the assessment of whether a filed mark belongs to the public domain or is of a deceptive nature is always made taking into account all official languages i.e. German, French and Italian. In practice, descriptive marks in English are also rejected. Swiss national emblems, in particular the Swiss cross and cantonal coats of arms, are registrable only for service marks, but not for trademarks (product and commercial marks).

A trademark is also excluded from trademark protection, if

  • the trademark is identical with a prior trademark and designated for the same goods or services ("passing off");

  • the trademark creates a likelihood of confusion with a prior trademark for the same or similar goods or services ("likelihood of confusion").

Passing off and likelihood of confusion will not be tested ex officio by the registration authority but only upon request of a competitor. There is elaborate case law regarding the issue of likelihood of confusion.

Upon filing, a trademark is protected for ten years beginning from the date of application. Protection can be renewed for further ten-year periods. Trademark protection may expire if the owner (or a licensee) does not commercially use the trademark for a period of five or more years.
 

2.2 Applicable Laws

Trademarks:

2.3 Trademark Registration

Trademark protection is conditional upon filing for a trademark with the Swiss Federal Institute of Intellectual Property (the "institute"). The filing procedure is described in detail on the website of the institute, together with all necessary forms and guidelines, also in English (www.ige.ch).

The registration authority does not review whether a filed trademark already exists in an identical or similar form. It is therefore necessary to perform a search in the commercial register and register of trademarks before filing a trademark application. The institute may assist the applicant in searching for identical or similar registered trademarks.

The applicant has two options for registration, namely Swiss or Swiss plus international registration.

In Switzerland, registration and objection procedures are completed within six months. An accelerated examination procedure (within one month) may be carried out at an additional cost of CHF 400.--. If there are no obstacles, the trademark will be published in the Swiss Official Gazette of Commerce (SOGC) and the Applicant will receive a certificate of registration. If the registration authority rejects the application, the applicant can submit an appeal to the Swiss Federal Board of Appeal for Intellectual Property. The Board of Appeal's decision may be referred to the Swiss Federal Supreme Court

International registration means registration under the Madrid Agreement and the Madrid Protocol and the corresponding Regulations for Common Execution of these two treaties (the Regulations). This system is administered by the World Intellectual Property Organization (WIPO) in Geneva. Through this system, a trademark owner can apply for protection for his trademark in designated states ("Contracting Parties") by submitting a single application, using one language for correspondence, with a single payment in Swiss francs. Every designated Contracting Party then examines the mark according to its own national regulations. Thus, protection is not automatically granted, but if it is granted, it is the same as if an application had been made separately at each national office. As of December 2005, 78 Contracting Parties were signatories to these two international agreements, including all EU states, most Eastern European countries, the USA, Russia, China, Japan and Australia. It is expected that further states will ratify these agreements in the near future.

Upon publication of the trademark in the Swiss Official Gazette of Commerce (SOGC), there is a deadline of 3 months during which any holder of a prior trademark may file a protest claiming passing off or likelihood of confusion with the Board of Appeal for Intellectual Property. The Board of Appeal's decision may be appealed to the Swiss Federal Supreme Court.

Domain names are not registered with the Swiss Federal Institute for Intellectual Property. The registration depends on the Top Level Domain name. The TDLs .com, .net and .org may be filed with one of the authorized registration offices of Internet Corporation for Assigned Names and Numbers (ICANN). Names under the TLDs with country codes (e.g. .ch, .de, .fr, .at) are registered with the respective national organizations. Domain names for the country codes .ch (Switzerland) and .li (Principality of Liechtenstein) can be registered with the foundation SWITCH (CH/LI DOM-REG).
 

2.4 Trademark infringement

The trademark owner has the right to prevent the use of the trademark (or a similar mark) by non-authorized persons. In particular, the trademark owner may prohibit a third party to

  • attach the mark to goods or packages;

  • use the mark in connection with the offering, marketing or storage of goods;

  • use the mark in connection with the providing of services;

  • import or export goods under the mark;

  • use the mark on printing matters, for advertising or any other business purpose.

Legal action against the infringing party may be brought before a designated cantonal court whose decision is subject to appeal to the Swiss Federal Supreme Court.
 

3. Copyrights

3.1 General Information

Swiss copyright law protects works of literature and art, intellectual creations with an individual character. Copyright protects also computer programs. Also protected are the works of performing artists (musicians and actors), audio and audio-visual recordings and radio and television broadcasts. These rights are referred to as neighbouring rights. Protection by copyright law is not conditional upon publication, registration, deposition of a copy of the work or other formal requirements, and the work itself does not need to be marked. Thus, there is no copyright register in Switzerland. Nor is copyright protection depending of marking a work with an affix like "copyright", "all rights reserved" or "©". Such affixes may still serve as a useful signal or warning for third parties and the general public.

The copyright protection arises simultaneously with the creation of the work or the performance of the artist. The crucial issue is therefore to define the copyrightable subject matter, i.e. the work. Article 2 I of the copyright law contains the definition of the protected work and, thus, the conditions for a work to enjoy legal protection.
 

3.2 Applicable Laws

3.3 Copyrightable subject matter

A work in the meaning of the law must be a literary or artistic, intellectual creation of an individual nature. The work must be discernable and therefore fixed in any tangible medium of expression. A mere idea is not protected. The work must also be of an "individual" nature which means that it must be statistically unique and distinguishable from other works. There is however no requirement of artistic or intellectual merit. The work must not be of any economic value. Swiss copyright law restricts the protection to works of literature and art which are, however, understood in a very broad sense, including (but not restricted to) music and other acoustic products, fine arts, paintings, graphics, sculptures, scientific works (including technical materials, plans, drawings, charts and maps), buildings, applied arts (e.g. furniture), photographs, movies, audiovisual works and choreographic works. Computer programs are also protected by copyright law, but not by patent law.

New works which have been created on the basis of an already existing work (editing) are individually protected. However, editing requires the permission of the copyright-holder of the original work (Article 3 Copyright Law).

Art. 33 of the Copyright Law grants to the performing artists, producers of audio.- and audio-visual media and broadcasters certain exclusivity rights with regard to the performances and reproductions, audio and audio-visual recordings and broadcasts (the so-called neighbouring rights).
 

3.4 Copyright Protection

In general, permission to use copyrighted works must always be given by the creator or owner of the rights. Art. 10 and 11 of the Copyright Law contain non-exhaustive lists of the individual rights of the copyright-holder. However, there are exceptions. For instance, published works may be used for personal reasons or among closely related people (such as relatives or friends) or for educational purposes without permission. This does not apply to computer programs.

Digital Rights Management (DRM) allows the electronic administration and marketing of rights for using digital content (e.g. download of copyrighted material such as songs or pictures). For detailed information see "The Implementation of the WCT and WPPT Provisions on DRM Systems and Technical Measures in Swiss Copyright Law" by Dr. Peter Mosimann.

Copyright protection lasts 70 years from the death of the author. Software protection ends 50 years after the death of the author. Neighbouring rights end 50 years after the performance of the work by the artist, the production of the audio or audio-visual media or the transmission of the broadcast.
 

3.5 Collecting Societies

The exploitation of certain copyright-protected works like musical works or works of literature is managed by private collecting societies established by authors and proprietors of neighbouring rights. Such collecting societies are supervised by the Swiss federal Institute of Intellectual Property. The following collecting societies are available:

  • SUISA, for musical, non-theatrical works;

  • SUISSIMAGE, for audio-visual works;

  • PROLITTERIS, for literature, photography & plastic arts;

  • SSA - Société Suisse des Auteurs, for theatrical, music-dramatic and audio-visual works;

  • SWISSPERFORM, for theatrical, music-dramatic and audio-visual works;

  • SMCC; multimedia.

     

3.6 Copyright infringement

The holder of a copyright may claim the prohibition of a threatening copyright violation, the removal of an already existing violation or the disclosure of the origin of goods which violate a copyright. The holder of a copyright may also ask for damages, payment of reparations or account of profits. Legal action against the infringing party may be brought before a designated cantonal court whose decision is subject to appeal to the Swiss Federal Supreme Court. Copyright infringement may also be subject to criminal prosecution and sanctions.
 

3.7 Revision of the Copyright law

The Swiss Copyright law is currently under revision to achieve compliance with the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT). For detailed information see www.urheberrecht.ch

 

 

4. Design

4.1 General Information

The specific design of a product may be subject to legal protection. Design protection applies to consumer items as well as to industrial products or parts of them. A certain design may be protected if it is new and unique. Design protection requires registration.

The legal protection of a registered design lasts for a period of five years from the date of registration. The protection period can be renewed up to four times, which results in a maximum protection period of 25 years.
 

4.2 Applicable Law

4.3 Design Registration

Design can be registered in Switzerland with the Swiss Federal Institute of Intellectual Property. To register a specific design, the applicant must demonstrate that the design is new, unique and different from already existing products and that it is not contrary to public order or the law. For registration, the applicant may use the form under Application for Deposit of Industrial Designs. Once a design is registered, the notation "Modèle déposé" or "Mod. dép." may be used.

Design protection may be extended to other countries which belong to the Hague Agreement within six months after the first date of deposit. The competent registration authority is the World Intellectual Property Organization (WIPO).
 

4.4 Design Infringement

The holder of a registered design may claim the prohibition of a threatening design violation, the removal of an already existing violation or the disclosure of the origin of goods which violate a protected design. The holder of a design may also ask for damages, payment of reparations or account of profits. Legal action against the infringing party may be brought before a designated cantonal court whose decision is subject to appeal to the Swiss Federal Supreme Court. Design infringement may also be subject to criminal prosecution and sanctions.

 

5. Unfair Competition

5.1 General Information

In Switzerland, fairness in the market is protected by the Law against Unfair Competition. The law is addressed to all players in the market, mainly the competitors but also anybody else whose behaviour may have an impact on the market, such as journalists, analysts, advisors, surveyors or others. The Law is directed against any behaviour which is deceptive or violating the overall principle of good faith which may have an impact on the relationship among competitors or between providers and customers (Art. 2 Law against Unfair Competition). The Law lists a number of examples of unfair practices which include misappropriation, false advertising and disparagement. It has to be noted that comparative advertising is allowed only to the extent as the comparison is based upon truly comparable facts only.

5.2 Applicable Laws

 

6. Computer Programs

6.1 General Information

In Switzerland, computer programs are protected by copyright law (Art. 2.3 Copyright Law) and cannot be patented. The protection includes source codes and object codes of standard or individual software and the respective documentations. The further development of computer programs requires the consent of the copyright-holder of the original software. Such edited works are subject to separate copyright protection. The author of a computer program has the exclusive right to lease the program to others (Art. 10.3 Copyright Law). Private use of copyright-protected programs is not admitted which is distinct from free private use of other copyright-protected works.

The legal user of a computer program is entitled to reverse engineering the source code and to de-compile the program. Such information may be used only for the production or maintenance of interoperable software but not for other purposes such as a new computer program. Such de-compilation corresponds to the fair use as defined also by U.S. jurisprudence.

The copyright of a computer program which has been designed and developed by an employee in execution of his or her duties under the employment agreement belongs by law to the employer (Art. 17 Copyright Law).

Computer programs are protected until 50 years after the death of the creator of the program.


6.2 Applicable Law

See Applicable Law to Copyrights.


6.3 Protection of computer programs

The protection of software is subject to the same rules and proceedings as the protection of other copyrighted works. In addition, technical protective measures have been established which are subject to separate legal protection (Digital Rights Management Systems).

The Implementation of the WCT and WPPT Provisions on DRM Systems
and Technical Protection Measures in Swiss Copyright Law by Dr. Mosimann from Wenger Plattner
 

 

Frequently Asked Questions


 

Where and how can I apply for patent registration of an invention in Switzerland?

For registration in Switzerland and Liechtenstein, the competent registration office is the Swiss Federal Institute for Intellectual Property.


Is there a possibility to apply for a single patent protection application for Switzerland and other countries?

Applications for registration in further European countries can be filed with the European Patent Office in Munich or the Swiss Federal Institute of Intellectual Property. Application for registration in any of the member states of the Patent Cooperation Treaty (PCT) is obtainable by the World Intellectual Property Organization in Geneva (WIPO).


How can I find out whether my invention is novel?

The Swiss Federal Institute for Intellectual Property does not review the requirement of novelty but provides a research service, the Prior Art Search for National Patent Application. This is different for international applications under the European Patent Treaty or the Patent Cooperation Treaty which are examined for novelty.


How long does patent protection last?

Patent protection in Switzerland lasts for a maximum period of 20 years. Prior expiration is possible if the renewal fees are not paid, if the patent holder withdraws the patent or if a court determines that a patent is void. Patent protection for medicines (pharmaceuticals) and pesticides may be extended for additional five years maximum to take the duration of the registration procedure with the regulatory authorities into account


Where and how can I apply for trademark protection in Switzerland?

For registration in Switzerland, the registration authority is the Swiss Federal Institute for Intellectual Property. International registration is managed by the World Intellectual Property Organisation (WIPO). Applications for international registration (including the U.S.) can also be filed with the Swiss Federal Institute for Intellectual Property. A suffix like "™" is not required.


How can I find out whether there exists already an identical or similar trademark in Switzerland?

Upon request, the Swiss Federal Institute for Intellectual Property provides a list of identical or similar trademarks. There is no automatic search for identical or similar trademarks when a trademark application is filed.


Which kinds of products or services are protected by my registered trademark?

A trademark is protected only for these categories of products or services for which protection has been sought. The relevant categories are those of the Nice Convention. The protection of so-called "famous trademarks" (Art. 15 Trademark Law) is not limited to any categories.


Which legal remedies do I have against infringement of my trademark?

There are two ways of action:

  1. Challenging the registration of a new trademark which is identical or similar with my already registered trademark by way of a formal objection. The objection has to be filed with the Swiss Federal Institute of Intellectual Property. The decision of the Institute is subject to appeal with the Board of Appeal for Intellectual Property and eventually with the Swiss Federal Supreme Court.

  2. Legal action against an infringement of a registered trademark may be brought before civil courts having jurisdiction (at the seat of the trademark owner, the seat of the infringing party or the place of infringement, e.g. where products with an infringing trademark are being sold). Every Canton has designated a single court which has jurisdiction to decide upon trademark disputes. Their decisions can be appealed to the Swiss Federal Supreme Court. The usual way to start legal proceedings is to file a request for provisional measures to immediately stop the use of an allegedly infringing trademark.


How can I obtain copyright protection for a work of literature or art?

Copyright protection of a work is not subject to any registration or deposit of the protected work. The copyright protection is activated by law by the creation of the work.


Do I have to deposit a copy of the protected work with a register of library?

No. There is no such deposit requirement. The work does not need to be marked with "©" or another suffix, either.


Is my firm brochure copyright protected?

Yes, if the brochure is of an "individual" nature, i.e. statistically unique and distinguishable from other works. Copyright protection is not restricted to artistic works but may also apply to technical or business texts.


How long is my work copyright protected?

As a general rule, copyright protection expires 70 years after the death of the author of the protected work. The protection period for computer programs lasts 50 years from the date of death of the creator.


Where and how can I apply for legal protection of the unique design of a particular product?

For registration in Switzerland, the registration authority is the Swiss Federal Institute for Intellectual Property. International registration is managed by the World Intellectual Property Organisation (WIPO). Applications for international registration (including the U.S.) can also be filed with the Swiss Federal Institute for Intellectual Property.


How can I obtain legal protection for a newly developed computer program?

Under Swiss law, computer programs are protected by copyright and cannot be subject to patents. As with other copyrighted works, the protection exists from the moment of creation of the computer program.

Am I allowed to further develop an existing computer program and market the improved program?

By further developing and improving a computer program, a new work may be created which is subject to separate copyright protection. The editing of an existing computer program is, however, subject to the author of the original software.
 

Who owns the copyright of a computer program developed by an employee of a software company?

The software company. The copyright to computer programs developed by an employee while performing his or her obligations under the employment agreement belongs to the employer.


Is it possible to transfer or license intellectual property?

Yes. Intellectual property rights can be transferred or licensed to another party by agreement. The transfer of patents requires a written agreement whereas there are no formal requirements for the transfer of other intellectual property. License agreements do not need to be in writing. However, written license agreements are strongly recommended.

 

Useful Links

 

Federal Institute of Intellectual Property

World Intellectual Property Organisation

 

May 2006