Patents, trade marks, copyright and designs in Switzerland: overview

A guide to intellectual property law in Switzerland. The Main IPRs Q&A gives an overview of the protection and enforcement of the following IPRs: patents, trade marks, registered designs, unregistered designs, copyright and confidential information.

To compare answers across multiple jurisdictions, visit the patents, trade marks and designs Country Q&A tool.

This Q&A is part of the global guide to IP law. For a full list of jurisdictional Q&As visit www.practicallaw.com/ip-guide.

Contents

Patents

1. What are the legal requirements to obtain a patent?

To obtain a patent, an invention must be:

  • Novel.

  • Capable of industrial application.

  • Inventive.

  • Not excluded from patent protection (see Question 2).

The novelty and inventiveness of the invention are not examined as part of the application procedure for a Swiss patent.

 
2. What categories are excluded from patent protection?

The following are excluded from patent protection:

  • The human body and its elements.

  • Sequences of genes.

  • Inventions the exploitation of which is contrary to human dignity, which disregard the integrity of living organisms or which are in any other way contrary to public policy or morality (such as procedures for cloning human creatures or the creation of chimeras and hybrids using human cells).

  • Methods of treatment by surgery or therapy and methods of diagnosis applied to the human or animal body.

  • Plant varieties and animal varieties, and essentially biological processes for the production of plants or animals.

 
3. Which authority registers patents? Does its website provide guidance on the application procedure?

The Swiss Federal Institute of Intellectual Property (SFIIP) registers Swiss patents. The SFIIP provides comprehensive guidance on the application procedure on its website (www.ige.ch/en/patents/patents-first-steps.html).

The SFIIP will refuse to grant a patent if the subject matter of the application:

  • Does not qualify as an invention.

  • Qualifies as an invention, but is not industrially applicable.

  • Falls under one of the categories that are excluded from patent protection (see Question 2).

The SFIIP does not review novelty and inventiveness with regard to applications for Swiss patents.

Patent protection in Switzerland is also available through the grant of a European Patent with Switzerland as a designated country by the European Patent Office. Further information concerning the filing and registration process can be found on the website of the European Patent Office (www.epo.org/applying.html).

 
4. On what grounds and when can third parties oppose a patent application or challenge an issued patent?

Any person can oppose a Swiss patent by giving notice to the Swiss Federal Institute of Intellectual Property (SFIIP) within nine months from publication of the patent grant in the patent register. The only acceptable ground for an opposition is that the patent covers an invention that is excluded from patent protection (see Question 2). The SFIIP decides whether the opposition should be rejected or the patent revoked, or whether the patent can be upheld with a modified scope.

If other conditions for protection are not fulfilled (in particular the novelty and inventive step requirements), a third party that wishes to have the patent invalidated must initiate nullity proceedings with the Swiss Federal Patent Court.

Actions in nullity of a granted patent can be based on the following grounds:

  • The subject matter of the patent is not novel.

  • The subject matter of the patent does not involve an inventive step.

  • The subject matter of the patent is not applicable in industry.

  • The subject matter of the patent is excluded from patentability (see Question 2).

  • The invention is not described in the patent specification in a manner sufficiently clear and precise for it to be carried out by a person skilled in the art.

  • The subject matter of the patent goes beyond the content of the patent application that determined the filing date.

  • The proprietor of the patent is not the inventor or its successor in title, or has no right to own the patent on other legal grounds.

 
5. When does patent protection start and how long does it last?

Patent protection starts from the date of registration. The protection lasts for 20 years from the date of filing.

Supplementary protection certificates (SPCs), that can be granted for drugs and pesticides, extend patent protection for up to a maximum of five years. An SPC takes effect on expiry of the maximum term of the patent for a period equal to the period that elapsed between the date of filing and the date of the first authorisation to place the product on the market in Switzerland.

 
6. On what grounds can a patent infringement action be brought?

Civil or criminal actions can be brought against anyone who:

  • Uses a patented invention unlawfully.

  • Refuses to notify the relevant authority of the origin and quantity of products in its possession, which are unlawfully manufactured or placed on the market, and to name the recipients and disclose the extent of any distribution of these products to commercial and industrial customers.

  • Removes the patent mark from products or their packaging without authorisation from the proprietor of the patent or the licensee.

  • Abets, participates in, aids or facilitates the performance of any of the above offences.

 
7. Which courts deal with patent infringement actions?

The Swiss Federal Patent Court has exclusive jurisdiction to hear patent infringement actions. The decisions of this court can be appealed to the Swiss Federal Supreme Court.

 
8. What are the defences to patent infringement actions?

Defences include:

  • Nullity of the patent.

  • Non-infringement or non-infringing use due to the application of limitations and exceptions, such as:

    • prior use rights;

    • farmer's privilege;

    • licences to use dependent inventions;

    • non-exclusive licences to use inventions that are not sufficiently exploited in Switzerland; or

    • licences in the public interest.

  • Exhaustion of patent protection.

  • Forfeiture of rights.

 
9. What are the remedies in patent infringement actions?

Remedies include:

  • Injunctions.

  • Financial compensation (damages or surrender of profits).

  • Declaratory judgment (in particular as to the validity of a patent).

  • Publication of the decision.

  • Criminal sanctions (a custodial sentence or a monetary penalty).

 
10. Is there a fast-track and/or a small-claims procedure for patent infringement actions?

There is no specific fast-track or small-claims procedure for patent infringement actions.

 

Trade marks

11. What are the legal requirements to obtain a trade mark?

A trade mark must:

  • Be capable of graphic representation.

  • Be capable of distinguishing the goods or services of one undertaking from those of another undertaking.

  • Not fall within any excluded categories (absolute ground for refusal) as set out under trade mark law.

 
12. Is it necessary or advisable to register trade marks?

Registration is a requirement for trade mark protection. However, unfair competition law and, in exceptional circumstances, copyright law can be invoked to protect unregistered signs that are used as trade marks.

Under Article 6bis of the WIPO Paris Convention for the Protection of Industrial Property 1883, it is not necessary for foreigners to register a trade mark if it is well known in Switzerland. In this case, the scope of protection is the same as for a registered trade mark.

 
13. Which authority registers trade marks? Does its website provide guidance on the application procedure?

The Swiss Federal Institute of Intellectual Property is responsible for the registration of Swiss trade marks. Detailed guidance on the application procedure (in German, French, Italian and English) can be found on its website (www.ige.ch). It is possible to file the application online at: www.e-trademark.ige.ch.

Trade mark protection in Switzerland is also granted to the owner of an international trade mark registration designating Switzerland. Further information concerning the international filing and registration process can be found on the website of the World Intellectual Property Organisation at: www.wipo.int.

 
14. On what grounds can the regulatory authority refuse to register a trade mark?

The Swiss Federal Institute of Intellectual Property (SFIIP) will reject a request for registration in the following cases:

  • The application does not satisfy the formal registration requirements.

  • The registration fees have not been paid.

  • There are absolute grounds for refusal, in particular the sign is:

    • in the public domain (for example, it is descriptive);

    • misleading; or

    • contrary to public morality or applicable law.

  • A guarantee or collective mark does not satisfy the specific requirements that apply to those trade marks.

The SFIIP does not conduct ex officio searches for other identical or similar registered trade marks.

 
15. On what grounds and when can third parties oppose a trade mark application or cancel a registration?

The owner of an earlier trade mark can file an opposition against the trade mark registration within three months from the publication date. An opposition is based on relative grounds for refusal, which includes cases where a trade mark creates a risk of confusion with a prior trade mark because the later trade mark is identical or similar to the prior trade mark, and intended for similar goods or services.

For Swiss designations of an international registration, the opposition period starts the first day of the month following the publication of the mark in the World Intellectual Property Organisation Gazette of International Trademarks.

First instance decisions of the Swiss Federal Institute of Intellectual Property in opposition proceedings can be appealed to the Swiss Federal Administrative Court.

 
16. When does trade mark protection start and how long does it last?

Protection of registered trade marks starts with registration and continues for a period of ten years from the filing date. Protection can be renewed indefinitely for additional ten-year periods.

Protection of unregistered trade marks lasts as long as the mark is continuously well known.

If a trade mark is not used for a consecutive period of five years, the owner of the trade mark can no longer enforce its trade mark rights, unless there are important reasons justifying non-use.

 
17. On what grounds can a trade mark infringement action be brought?

A trade mark owner can prevent others from using a sign that is excluded from protection based on relative grounds for refusal (see Question 15). In particular, the owner can prevent others to:

  • Affix the sign to goods or their packaging.

  • Offer, put into circulation or stock goods for such purposes under the sign.

  • Offer or render services under the sign.

  • Import or export goods under the sign.

  • Use the sign on business papers.

 
18. Which courts deal with trade mark infringement actions?

The 26 Swiss cantons must designate a court that has jurisdiction as sole cantonal instance for disputes in connection with intellectual property rights, including trade mark infringement cases.

The decisions of the competent cantonal courts can be appealed to the Federal Supreme Court.

 
19. What are the defences to trade mark infringement actions?

Defences include:

  • Non-use of a trade mark for a consecutive period of five years.

  • Lack of risk of confusion.

  • Right of continued use (due to use prior to registration).

  • Forfeiture of rights.

  • The mark is in the public domain and was registered by mistake.

  • The mark has lost its distinctiveness and has become part of the public domain.

  • Use of the trade mark for information purposes.

  • Ornamental use of the trade mark.

 
20. What are the remedies in trade mark infringement actions?

Remedies include:

  • Injunctions.

  • Seizure of the goods with the infringing trade mark and their destruction.

  • Financial compensation (damages or surrender of profits).

  • Declaratory judgment (in particular as to the validity of a patent).

  • Publication of the decision.

  • Criminal sanctions (custodial sentence or monetary penalty).

 
21. Is there a fast-track and/or a small-claims procedure for trade mark infringement actions?

There is no fast-track or small-claims procedure for trade mark infringement actions. The owner of a trade mark must initiate ordinary proceedings or file a preliminary injunction request against an alleged infringer.

 

Copyright

22. What are the legal requirements to obtain copyright protection?

Copyright protects intellectual creations with a unique/individual character in the field of literature and art, as well as computer programs. Protection does not depend on registration and is granted regardless of the purpose or cultural, aesthetic or economic value of the creation.

 
23. Can copyright be registered? If so, is registration required?

Copyrights cannot be registered.

 
24. When does copyright protection start and how long does it last?

Copyright protection starts at the time the work is created, and lasts for the author's life plus an additional 70 years (50 years for computer programs) from the end of the year of the author's death. In the case of joint authorship, protection expires 70 years (or 50 years) following the death of the last surviving joint author.

 
25. On what grounds can a copyright infringement action be brought?

Grounds for copyright infringement action include any unauthorised use of literary, artistic, scientific and other intellectual works protected by copyright. Unauthorised use can include:

  • Producing copies of the work.

  • Offering for sale, selling or distributing copies of the work.

  • Delivering or performing the work, or making it perceivable in another place.

  • Rebroadcasting the work by means of technical installations for which the operator is not the original broadcasting organisation.

  • Broadcasting the work through radio, television or similar means.

The author can also take legal action if its moral rights are violated.

 
26. Which courts deal with copyright infringement actions?
 
27. What are the defences to copyright infringement actions?

Defences include:

  • The work is not protected by copyright.

  • Exhaustion of rights.

  • Non-infringement.

In addition, Swiss copyright law sets out a catalogue of lawful uses of copyrighted works, as follows:

  • Any use of a work by a teacher for teaching in class (but compensation must be paid to the owner of the copyright).

  • Archive and back-up copies.

  • Copies for broadcasting purposes.

  • Private use (except for software).

  • Quotations.

  • Reporting of current events.

  • Temporary copies.

  • Reproduction of works in enterprises, public administrations, institutions, commissions and similar bodies for internal information or documentation.

  • Use for the creation of parodies or other comparable variations of the work.

  • Use by persons with disabilities.

  • The work is part of museum, exhibition and auction catalogues.

  • The work is located in a public place.

 
28. What are the remedies in copyright infringement actions?

The remedies are the same as for patent infringements (see Question 9).

 
29. Is there a fast-track and/or a small-claims procedure for copyright infringement actions?

There is no fast-track or small-claims procedure for copyright infringement actions. The procedure is the same as for trade mark infringements (see Question 21).

 

Registered designs

30. What are the legal conditions to obtain a registered design right?

A valid design right is obtained on registration if it is:

  • New.

  • Inherently distinctive from existing designs in significant points.

  • Not contrary to public morality or law.

 
31. Which authority registers designs?

The Swiss Federal Institute of Intellectual Property registers national designs. Guidance on the application procedure is available in English on its website (www.ige.ch/en/designs/protection-in-switzerland.html).

An international design covering Switzerland must be filed directly with the World Intellectual Property Organisation (www.wipo.int).

 
32. On what grounds and when can third parties oppose a registered design application?

There is no opposition procedure regarding registered design rights under Swiss law.

 
33. When does registered design protection start and how long does it last?

Protection starts from the date of registration and lasts for five years from the date of filing, renewable every five years up to four times (maximum protection period of 25 years).

 
34. On what grounds can a registered design infringement action be brought?

The holder of a registered design can successfully initiate an infringement action if a third party uses a design that contains the same characteristic elements, and these elements lead to the same overall impression as the protected design.

 
35. Which courts deal with registered design infringement actions?

These are the same as for trade mark actions (see Question 18).

 
36. What are the defences to registered design infringement actions?

Defences include:

  • Invalidity of the design (for example, lack of novelty and individual character).

  • The design is dictated by its technical function.

  • The design infringes Swiss law or international treaties.

  • The design is against public order or morality.

  • Non-infringement (for example, different overall impression).

  • Forfeiture of rights.

 
37. What are the remedies in registered design infringement actions?

The remedies are the same as for patents infringements (see Question 9).

 
38. Is there a fast-track and/or a small-claims procedure for registered design infringement actions?

There is no fast-track or small-claims procedure for registered design infringement actions. The holder of a design must initiate ordinary or preliminary injunction proceedings.

 

Unregistered designs

39. What are the legal conditions for unregistered design rights to arise?

Unregistered design rights are not regulated under Swiss law. However, unregistered designs can enjoy some protection under copyright law and unfair competition law.

 
40. When does unregistered design protection start and how long does it last?

Not applicable (see Question 39).

 
41. On what grounds can an unregistered design infringement action be brought?

Not applicable (see Question 39).

 
42. What are the defences to unregistered design infringement actions?

Not applicable (see Question 39).

 
43. What are the remedies in unregistered design infringement actions?

Not applicable (see Question 39).

 

Trade secrets and confidential information

44. What are the legal conditions for rights in confidential information to arise?

Confidential information is not considered an IPR under Swiss law and there is no specific legislation that protects confidential information. However, knowledge of business-relevant manufacturing and other information that is neither obvious nor readily accessible is protected under specific provisions of unfair competition law, employment law and criminal law. There are no formalities for protection. Protection through non-disclosure agreements or confidentiality clauses is highly recommended.

 
45. On what grounds can an action for unauthorised use of confidential information be brought?

Civil law

The Federal Act against Unfair Competition prohibits:

  • The inducement of employees, agents or auxiliary persons to unlawfully obtain trade secrets of their employers or principals.

  • The unauthorised exploitation of (entrusted) work achievements of others.

  • The exploitation or disclosure of unlawfully obtained trade secrets.

Swiss labour law prohibits employees, during their employment, to exploit or reveal confidential information (such as manufacturing or trade secrets) obtained while in the employer's service.

Civil procedural law

The Swiss Civil Procedure Code and the Federal Patent Act generally prevent parties to litigation from disclosing confidential information and trade secrets in civil court proceedings. The competent court must take safeguarding measures not to unnecessarily disclose a party's confidential information and trade secrets.

Criminal law

Under the Swiss Penalty Code, it is a crime for anyone to:

  • Reveal a manufacturing or trade secret that it is under a statutory or contractual duty not to reveal.

  • Carry out industrial espionage.

The Swiss Banking Act punishes the disclosure of a secret that any person has come to know as a professional in the banking industry.

In each of the above cases, a convicted person can face imprisonment for a maximum of three years or a monetary penalty.

To be protected under criminal law, a trade secret or confidential information must meet all of the following requirements:

  • The information must concern information regarding the manufacturing of goods (manufacturing secret) or relevant information to conduct a business, such as client lists or business concepts (trade secret).

  • The information must be objectively secret, which means that the information is neither obvious nor easily accessible.

  • The owner of the information must want to keep the information secret.

  • The owner of the information must have a legitimate interest in the confidentiality of this information.

 
46. Which courts deal with actions for unauthorised use of confidential information?

Whether the civil or criminal courts are competent depends on the legal basis of the claim (see Question 45) and the value in dispute. The competent courts within the cantons are determined by cantonal law. Judgments of the cantonal courts can be appealed to the Federal Supreme Court.

 
47. What are the defences to actions for unauthorised use of confidential information?

Defences include that the

  • Information used was not confidential.

  • Information was not exploited.

  • Information was not obtained unlawfully.

  • Disclosure was required by law.

 
48. What are the remedies in actions for unauthorised use of confidential information?

Remedies include:

  • Criminal sanctions.

  • Declaratory judgment.

  • Preliminary measures.

  • An order to cease and desist from an unlawful act.

  • Compensation of damages.

  • Surrender of profits.

  • Publication of the judgment.

 
49. Is there a fast-track and/or a small-claims procedure for actions for unauthorised use of confidential information?

There is no fast-track or small-claims procedure for actions for unauthorised use of confidential information. The holder of confidential information must initiate civil proceedings (ordinary proceedings or request for preliminary measures) or criminal investigations.

 

Contributor profiles

Markus Wang, Partner

Bär & Karrer

T +41 58 261 55 10
F +41 58 263 55 10
E markus.wang@baerkarrer.ch
W www.baerkarrer.ch

Professional qualifications. Switzerland, qualified lawyer (admitted to the bar and to all Swiss courts)

Areas of practice. Contentious and non-contentious patent, trade mark, copyright and other IP-related issues, in particular in the pharmaceutical, biotech and IT sectors; licences and R&D agreements; regulatory matters in the fields of life sciences and healthcare.

Non-professional qualifications. Dr. iur.; LLM

Languages. English, German

Professional associations/memberships.

  • Swiss Bar Association (SAV/FSA).
  • Zurich Bar Association (ZAV).
  • International Association for the Protection of Intellectual Property (Association Internationale pour la Protection de la Propriété Intellectuelle) (AIPPI).
  • Institute for Intellectual Property Law (Institut für den Gewerblichen Rechtsschutz) (INGRES).

Jonas Bornhauser

Bär & Karrer

T +41 58 261 54 13
F +41 58 263 54 13
E jonas.bornhauser@baerkarrer.ch
W www.baerkarrer.ch

Professional qualifications. Switzerland, qualified lawyer (admitted to the bar and to all Swiss courts)

Areas of practice. Contentious and non-contentious patent, trade mark, copyright and other IP-related issues, in particular in the pharmaceutical, biotech and IT sectors; licences and R&D agreements; regulatory matters in the fields of life sciences and healthcare.

Non-professional qualifications. Dr. iur.; LLM

Languages. English, German

Professional associations/memberships.

  • Swiss Bar Association (SAV/FSA).
  • Zurich Bar Association (ZAV).
  • International Association for the Protection of Intellectual Property (Association Internationale pour la Protection de la Propriété Intellectuelle) (AIPPI).
  • Institute for Intellectual Property Law (Institut für den Gewerblichen Rechtsschutz) (INGRES).

Raphael Nusser

Bär & Karrer

T +41 58 261 56 98
F +41 58 263 56 98
E raphael.nusser@baerkarrer.ch
W www.baerkarrer.ch

Professional qualifications. Switzerland, qualified lawyer (admitted to the bar and to all Swiss courts)

Areas of practice. Contentious and non-contentious patent, trade mark, copyright and other IP-related issues, in particular in the pharmaceutical, biotech and IT sectors; licences and R&D agreements; regulatory matters in the fields of life sciences and healthcare.

Non-professional qualifications. Dr. iur.; LLM

Languages. English, German

Professional associations/memberships.

  • Swiss Bar Association (SAV/FSA).
  • Zurich Bar Association (ZAV).
  • International Association for the Protection of Intellectual Property (Association Internationale pour la Protection de la Propriété Intellectuelle) (AIPPI).
  • Institute for Intellectual Property Law (Institut für den Gewerblichen Rechtsschutz) (INGRES).

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