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Details on Site Contribution
 
Site contribution
Date: October 2015
Prepared by:
Dr. Martin Eckert, Attorney at Law, Partner
Dr. Andreas Glarner, Attorney at Law, Associate
MME Legal | Tax | Compliance
Gubelstrasse 11
6300 Zug
Phone:   +41 41 726 99 66
Fax:   +41 41 726 99 60
E-Mail:   martin.eckert@mme.ch
andreas.glarner@mme.ch
I. Summary
Intellectual property ("IP" or "IPR") protects applications of ideas and information that are of commercial value. Intellectual property rights thus grant to their owner certain exclusive rights to a variety of intangible assets, i.e. musical, literary or artistic works; inventions; signs, labels, etc. Under Swiss law, IPRs are subject to federal law and also regulated through a wide range of international treaties. A holder of IPRs is authorised to prevent any unauthorized use of ist intellectual property and to exploit such property, in particular by licensing it to third parties.
The types of intellectual property regulated by the Swiss legislator are copyrights, trademarks, patents, design, plant variety and topographical rights. Other rights typically protected by intellectual property law (trade secrets, the right of passing off, trade names, etc.) are addressed to in the Swiss Unfair Competition Act or special legislation.
Thereby, the Swiss system differs between unregistered and registered IPRs. There is no need for a registration or any kind of notification to obtain copyright protection. Patent, trademark as well as design rights only arise with the proper registration with the Swiss Institute for Intellectual Property.
The protection of IPRs in general is considered to enhance market competition: It improves economic efficiency, reduces duplication of research and development ("R&D") and strengthens the incentive for the initial R&D. Out of that view, IPR and competition law have a similar approach and both encourage innovation. However, IPR may also be used for anti-competitive purposes: Due to the territorial nature of IPRs, they allow their owner (or a licensee) to get exclusivity within a certain territory, which may be detrimental to the goal of generating market competition, as they may prevent parallel trade and tend to give legal monopolies to their owner, which lead to the foreclosure of the market.
Swiss law principally exempts effects of IPR to the competition on a market from the application of the antitrust law (Federal Act on Cartels and other Restraints of Competition). However, competitive effects of IPR that do not arise out of the existence, but for example from the abuse of the IPR, may be reviewed by the Swiss competition law authorities.
The Swiss Unfair Competition Act aims to prevent torts that cause an economic injury to a business through a deceptive or wrongful business practice. Such could be, for example, misappropriation, false advertising, certain forms of comparative advertising or free-riding. It is widely accepted that the intellectual property laws and the Unfair Competition Act may be applied cumulatively: A certain business practice could therefore result in an infringement of IPR and in the meantime be considered as a breach of the rules of the Fair Trade Act.
II. Types of Intellectual Property
1.  Copyrights
1.1  Overview
The Swiss Copyright Act protects as copyrights, independent from value or purpose, intellectual creations with cultural, informational and entertainment content and a unique character. Such creations are referred to as works, which classically include literature, music, pictures, sculptures, films, operas, ballets and pantomimes. Moreover, Computer programs are also protected under the Swiss copyright legislation.
In the last century the range of copyright has been extended by the addition of certain analogous rights given to the performing artists, to the producers of sound and film recordings and to broadcasters ("Neighboring rights" or "related rights").
Since certain works must remain freely accessible to the public, they are not protected by copyright (e.g. legislative texts, court decisions, official and administrative protocols, patent documents). In addition, copyrights shall not hinder the free flow of ideas. Therefore, copyrights only protect the expression or fixation of an idea (e.g. a written text or the notation of a song), however, never the underlying idea.
  • Federal Law on Copyright and Neighboring Rights of 9 October 1992 (SR 231.1, official text only available in German, French and Italian)
  • Ordinance on Copyrights and Neighboring Rights of 26 April 1993 (SR 231.11, official text only available in German, French and Italian)
  • What do I have to do to protect my copyrights?
    Nothing. By law, the creation of a work goes hand in hand with its protection under the Swiss Copyright Act: As copyright is no registered right, it is not necessary or possible to file for protection or to "deposit" the works. Accordingly, and even though possibly a useful information for third parties, copyright notifications (such as "copyrights of", "all rights reserved" or "©") have no legal effect in Switzerland.
    Principally, the person who created a work owns the copyright to it. Under Swiss law, this also applies, if not otherwise agreed upon in the employment contract and with the exception to software, to works created by an employee. If several persons have been involved in the creation of a work, they hold joint ownership of the copyright.
  • What are the rights of the owner of a copyright?
    Economically, copyrights grant to their owner the exclusive right to the work: The Owner may decide whether, when, where and how the work may be used, e.g. reproduced, translated, edited, distributed, sold, performed, broadcasted etc. These economic rights can be licensed or transferred to others. In addition, copyright protects the personal relationship of the author to the work as an expression of his creativity and personality ("moral rights"). Accordingly, only the author may decide if, when and how his/her work shall be made public. The moral rights are not transferable.
    Neighboring rights are comparable with copyrights, although they give a weaker legal protection to their holder.
    Swiss Copyright may only grant protection to works within the territory of Switzerland. However, international treaties guarantee protection at a more or less international level: The majority of industrialized countries have signed the most important treaties on copyright (Berne Convention) and related rights (Rome Convention).
  • May copyrights only be used with the permission of the owner (exceptions to protection)?
    Principally, all uses require permission of the owner. Copyright owners can license or permanently transfer or assign their exclusive rights to others. To balance the public interest in the wide distribution of the materials produced and to encourage creativity, the Swiss Copyright Act includes certain exceptions and limitations to these rights. These include, e.g., the use for personal private purposes and certain uses for teaching and internal business purposes, which do not require the permission of the copyright owner. These exceptions, however, do not apply for computer programs. In compensation for such legally permitted uses, the right holder receives a royalty payment from the collecting societies under so-called collective management.
  • How long are copyrights protected?
    Copyright protection applies for a specific period of time, after which the work enters the public domain. According to Swiss law, copyright protection expires 70 years (software: 50 years) after the author deceased. The protection of neighboring rights expires 50 years after the performance, publication or the emission of the broadcast.
  • What are collecting societies?
    Since an individual right management is often impossible (e.g. photocopying or use of protected works in schools), collecting societies manage the rights of the right holders collectively. To do so, they use established tariffs which were negotiated with the primary user associations. For certain rights, collective management is even compulsory.
    Currently, there are five collecting societies in Switzerland:
  • ProLitteris (Literature, photography and visual art)
  • Society of Swiss Authors (Theatre and dramatic musical works)
  • Suisa (Musical, non-theatrical works)
  • Suissimage (Audiovisual works)
  • Swiss perform (Neighboring rights)
    2. Patents
    2.1  Overview
    A patent is a set of exclusive protective rights granted for a limited time period by the intellectual property authorities of the Swiss government to an inventor (or their assignee) for a technical invention, i.e. a technological improvement which contains at least some scintilla of inventiveness over what is previously known.
    A patent is not a right to practice or use the invention. It rather provides to its holder the right to exclude others – not just imitators, but even independent devisers of the same idea - from making use of the invention for the duration of the patent. Thus, patents reward their holder for their initial investment and thereby set an incentive for research and development. That conception reveals the reasons why patents are considered to be the most basic, valuable and – to competitors – most dangerous of all IPR: Since a patent may be used to exclude others from using the invention in any form in their products and services, it is designed to give its holder a technical monopoly or at least a strong competitive advantage. A patent system must always try to strive to ensure that it gives protective rights over all applications of an invention revealed in the application, but no more than this. In return for mentioned competitive advantages, the holder must disclose the details of the invention to the public by describing the invention in the patent specification. This knowledge may be freely used after the patent protection has run out. In addition, to avoid undesired harm on competition, patents are not freely available for all industrial improvements, but only for inventions that qualify as a "patentable invention" by comparison to what is already known in the industry.
    A Swiss patent registration is only valid in Switzerland. If the invention has not been localy patented for other territories, anyone may use or commercially exploit it.
  • Under Swiss law, patents are regulated by the Federal Act on Patents for Inventions of 25 June 1954 (SR 232.14, official text only available in German, French and Italian)
  • Ordinance on Patents for Inventions of 19 October 1977 (SR 232.141, official text only available in German, French and Italian)
  • Why patent an invention?
    Patents give its owner the right to prevent others from commercially using an invention (e.g., production, application, selling, importing). Principally, it is the patent holder's responsibility to monitor the activities of its competitors, to check whether its patent rights are being violated by a third party and to initiate the appropriate legal actions, if necessary.
    According to Swiss procedural law, patent infringement claims are to be decided by the Cantonal Civil Court, whose decisions are subject to appeal to the Swiss Federal Supreme Court. Currently, a Swiss Federal Patent Court is being established as a first instance which should start its work in 2012.
  • What types of innovation may be patented?
    Patents may only be registered for invention in a legal sense, i.e. technical inventions. Thereby, the term "technical" is defined in a broad sense. Two main categories of inventions can be distinguished: Product inventions (e.g. new engines, special tools) and process inventions (e.g. a process for coloring cotton). A patent claim may only fall within one of these categories and the protection granted for these categories differs. No inventions (due to lack of technical character) in the meaning of Swiss patent law are for example:
  • mere ideas, discoveries, scientific theories, teaching methods, therapeutic methods or mathematical methods;
  • literary, dramatic, musical or artistic work or any other aesthetic creations (which may however be protected as designs or copyrights). However, patent protection may be granted if the design has a technical function;
  • schemes, rules or methods for performing a mental act (e.g. rules for playing a game, psychological tests or business methods);
  • software, which "as such" is protected by copyright law; however, software that is integral to an invention may be patented.
  • Are all inventions patentable?
    Next to the requirement of an "invention", the invention must also be patentable, that is:
  • the invention must be novel, i.e. not part of the prior art. The "state of art" is thereby considered to include any information which has been made accessible to the public in any form (e.g., written description, public lecture, radio program) anywhere in the world before the date of the patent filing. It is therefore strongly recommended not to publish or publicly disclose anything about an invention until the patent application has been filed;
  • it must be possible to apply the invention commercially, i.e. the invention must be implementable and reproducible;
  • the invention may not be obvious to a person skilled in the art, i.e. it must involve a so called "incentive step" (unexpected characteristics of products, innovation overcomes a prejudice or surprising effects of processes);
  • the invention must not fall within any of the categories of subject-matter specifically excluded. Under Swiss law, not patentable are for example plant varieties, animal species, the human body (including embryos) or gene sequences that occur naturally.
    No patent protection will be granted to inventions which are contrary to essential public conventions or morality (e.g. procedure for cloning human beings, package bombs).
  • How can I obtain a patent for Switzerland?
    There are principally three options to obtain a patent for Switzerland:
  • Patent application for the territories of Switzerland and Liechtenstein filed with the Swiss Institute for Intellectual Property (see English guidelines on www.ige.ch);
  • European Patent application filed with the European Patent Office (EPO) and request protection for Switzerland (90% of all applications are requested with protective effect for Switzerland);
  • International application under the PCT.
    Which of these application routes is chosen depends on the type of invention, the territories for which protection is requested for as well as the fees and expenses that a patent applicant is willing to pay.
    If a patent application is filed with the Swiss Institute for Intellectual Property, the Institute examines if the innovation qualifies as an invention. It however does not examine novelty and inventive step as part of the examination process. This contrary to an European patent application, where novelty and incentive step are examined upon request of the applicant. The Paris Industrial Property Convention ensures that nationals of every Union country have the same right to secure patents in other Union countries as do nationals of the latter.
    The filing date of a patent application is of importance under two aspects: First, it decides to which of two different parties trying to obtain a patent registration for the same invention patent protection will be granted to (priority). Second, the priority deadline begins as of the date of filing, thereafter the applicant may apply within 12 months for a foreign patent registration with the filing date of the first Swiss application.
    In average, a material examination of a patent application by the Swiss patent authorities takes 3 to 4 years. However, the Institute for Intellectual Property offers, for a special fee, a faster examination.
  • Do I need a Patent Attorney?
    We recommend consulting a specialized patent attorney for the application process. A list of Swiss patent attorneys is published on www.ige.ch. Foreign applications must have a Swiss representative.
  • How expensive is the registration in Switzerland?
    Fees for a patent registration are CHF 200 for filing and CHF 500 for the examination. Five years after the date of filing, yearly renewal fees are CHF 200 for the 7th and 8th year and CHF 310 from the 9th year on.
  • How long is a patent protected?
    As in most countries, in Switzerland inventions may generally be protected by a patent for the duration of 20 years beginning from the date of filing in Switzerland. Only for pharmaceuticals and pesticides a longer protection is available. Once the time limit has elapsed, the invention becomes public and may be freely used. In addition, a patent may elapse earlier if the renewal fees are not paid in time, the patent holder withdraws the patent or a court determines a patent to be void.
    3.  Trademarks
    3.1  Overview
    A trademark is a protected sign which is used to distinguish the products or services of one business from another.
    Basically, any graphic representations can be used as trademarks under the law: For example, words (e.g., SWATCH), combinations of letters (e.g., UBS), graphic images (e.g., the SBB logo), numericals (e.g., 501), three-dimensional forms (e.g., the Mercedes star), slogans (e.g., "Cats would buy Whiskas"), any combination of these elements, and a series of tones (accoustic trademarks, e.g., the Ricola jingle).
    Only trademarks registered with the Swiss Institute for Intellectual Property (IGE) are protected.
  • Federal Law on the Protection of Trademarks and Indications of Source of 28 August 1992 (SRL 232.11, official text only available in German, French and Italian)
  • Ordinance on the Protection of Trademarks of 23 December 1992 (SRL 232.111, official text only available in German, French and Italian)
  • Why register a trademark?
    Registering a trademark gives you – by law – the exclusive right to use the registered sign for specific goods and services or to grant someone else the right to use it (e.g., licensing). As a trademark owner you can prevent others from using an identical or similar sign for the same or similar goods and services.
  • What do I have to bear in mind when registering trademarks?
    Do not chose descriptive or aggrandizing words (i.e., SUPER for automobiles or WATERPROOF for rain coats). The IGE will refuse such trademarks.
    Search the register before you register a trademark in order to avoid infringements of a similar or identical trademark that is already registered. The owner of the prior trademark can demand the cancellation of your trademark and financial compensation. You can do the search online (www.swissreg.ch) or mandate a specialist of the IGE. Note that trademarks can also infringe on business and domain names.
    Select your goods and service classes carefully. When you register, you must indicate the goods and services for which you wish to register and use your trademark. A trademark is protected only for the selected classes of goods and services. Note that if you do not use your trademark for these products or services within five years of registration, you can lose your trademark protection.
  • How expensive is the registration in Switzerland?
    The trademark registration fees in Switzerland are CHF 550, for three classes of goods and services for a period of 10 years. For an express trademark examination another CHF 400 must be paid.
  • How long does the registration take?
    Application will be made at the online platform e-trademark in German, French and Italian. You can also submit the registration application form by e-mail (tm.admin@ekomm.ipi.ch), mail or fax. If there are no apparent problems, a trademark is examined within ten working days and then afterwards registered following payment of the fees. The registration is finished within a maximum of six months after payment of the fees or the IGE will send an objection within the same time limit. Early examination and registration of applications can be requested against extra fees.
  • How long can a trademark be protected?
    The 10-year term of protection can be renewed indefinitely.
    4.  Design
    4.1  Overview
    A design is the visible form of a two-dimensional (patterns, such as fabric designs) or three-dimensional (models such as tooth brushes) object. The form is characterized through the use of lines, contours, colors, surfaces or materials.
    You can protect your design if it is new and significantly differs from prior forms and if it is not contrary to public morality or law. In addition, the form of a model must be more than what would be functionally necessary for the object.
  • Federal Law on Industrial Designs of 5 October 2001 (SRL 232.12, official text only available in German, French and Italian)
  • Ordinance on Designs of 8 March 2002 (SR 232.121, official text only available in German, French and Italian)
  • Why register a design?
    Buyers look for style and design. This applies to consumer items but also to industrial products. You put time, expertise and money into your design. In order to harvest the fruit of your efforts and not some imitator, your design should be protected. Switzerland offers the registration and protection of design in a rather quick, simple and unbureaucratic way with the IGE.
    As the legal owner of a design, you can prevent others from using your design for commercial purposes, for instance for manufacturing or selling products with the same or a similar design, for up to 25 years.
  • What are the conditions for the protection of design?
    Creations can become protected designs when they meet the following conditions:
  • The design must be new.
  • It must be inherently distinctive from existing designs in significant points.
  • It must not be against public morality or law.
    The Institute does not examine a design for its newness or distinctiveness. This is why others can legally contest, for instance, its newness at anytime. The courts then need to decide if a protective title is valid or not. If not, the design is cancelled in the register.
    We advise to check whether your design fulfills the requirements for protection before you file. Look in specialty stores, at your competition, at exhibitions, and in the trade literature for identical or similar designs.
    Design protection does not protect production techniques, applications, or technical functions. These may be protected by patents.
  • Is it complicated to deposit a design?
    No. You need to fill-in the «Deposit of Industrial Designs» form (only in German, French and Italian) and to attach one or more reproducible images of each design. The application has to be mailed to the IGE per post, or via e-mail to design.admin@ekomm.ipi.ch.
    After completion of the application you will receive an invoice for the filing fee. After your payment, the IGE will examine your application. Depending on the examination results your design is then entered in the register or rejected.
    You receive a certificate when the design is registered and published online at www.swissreg.ch. The publication fees are the responsibility of the person filing and depend on the number of images included.
  • Do I need a lawyer?
    If you are not domiciled in Switzerland, you must have a Swiss representative (such as an Attorney, Trademark Lawyer or Patent Attorney).
  • How expensive is the deposition in Switzerland?
    The fee for design protection of one design application is CHF 200. Each additional design in the same application procedure costs CHF 100. If an applicant files for 6 or more designs in the same application, a total fee of CHF 700 will be due. Renewal of protection is due every five years and amounts to the initial fees as mentioned above.
  • Can I defer the publication?
    Yes. You may not want your design to be made public because, for instance, you do not want to attract imitators or trend spotters. If this is the case, you may request that the publication be deferred (maximum 30 months after the application). During this period, other parties may still use the design in good faith.
  • How long can a design be protected?
    The first period is five years. The protection can be extended for four more periods of 5 years each (maximum protection: 25 years).
    III. Useful Links
     
    Patents
  •  
  • Swiss Federal Institute of Intellectual Property
    The website of the Institute provides for guidelines and forms on the registration procedure of patent
    also in English
  •  
  • ip-search - Swiss Federal Institute of Intellectual Property
    Registration authority offers a research service to help applicants determine what constitutes prior art
    worldwide
  •  
  • Swiss Federal Patent Court
    The Federal Patent Court is expected to take up its activities in 2012 (please consult the website above
    for news)
     
    Copyrights
  •  
  • Swiss Federal Institute of Intellectual Property
    This website provides a detailed descriptions of the partial amendment of the Copyright Act, effective 1
    July 2008
     
    Trademarks
  •  
  • swissreg - Swiss Federal Insitute of Intellectual Property
    The official publication of the IGE includes information about nationally registered trademarks.
  •  
  • Swiss trademark product association
    The Swiss trademark product association has an informative trademark protection brochure, which can be
    downloaded in German or French.
  •  
  • Infosheet - Swiss Federal Institute of Intellectual Property
    Info sheet on conflicting marks (German only)
  •  
  • Swissness - Swiss Federal Insitute of Intellectual Property
    Latest news concerning the recent debate on Swissness
     
    Design
  •  
  • Swiss Federal Insitute of Intellectual Property
    The official publication of the IGE includes information about nationally registered designs.
  •  
  • Swiss Federal Insitute of Intellectual Property - Design
    Information of the IGE on Design protection.
  •  
  • Guide for Innovative and Creative Minds
    “Invent, Produce, Market: What role do patents, trademarks, and designs play in the innovation process?”