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 multi-jurisdictional guide to IP law. For a full list of jurisdictional Q&As visit www.practicallaw.com/ip-mjg.

Gabriela Taugwalder and Katrin Ehrensperger, Wenger & Vieli AG
Contents

Patents

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

The invention must be a new solution to a technological problem and:

  • Novel (not part of the state of the art).

  • Inventive (not obvious for a person skilled in the art).

  • Capable of industrial application.

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

 
2. What categories are excluded from patent protection?

Excluded categories include:

  • The human body at its various stages of development, and parts of it, in its natural environment.

  • The sequence of a gene existing in nature, or a part of it.

  • Methods of surgical or therapeutic treatment and of diagnosis applied to the human or animal body.

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

  • Inventions, the implementation of which are contrary to the dignity of man and creature and contrary to public order or morality, such as procedures for cloning human creatures.

A detailed list of exemptions is set out in Articles 1a, 1b and 2 of the Federal Patent Act.

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

A national application must be filed with the Swiss Federal Institute of Intellectual Property (SFIIP) (www.ige.ch).

The applicant can also file a:

  • European patent application with the European Patent Office (EPO) (www.epo.org).

  • Patent Cooperation Treaty application with the SFIIP if domiciled in Switzerland or a Swiss national, or with WIPO (www.wipo.int) or in some cases with the EPO.

All three websites provide guidance.

 
4. On what grounds and when can third parties oppose a patent application?

Third parties have nine months from publication to oppose the patent registration on the grounds that its subject matter is excluded from patentability (see Question 2). Further grounds are available in the case of a European patent.

Third parties can also submit a nullity claim to the competent court after registration on the grounds that:

  • The subject matter of the patent is not patentable.

  • The invention is not disclosed in the patent specification in such a way that a person skilled in the art could carry it out.

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

  • The registered owner is not the inventor or his legal successor and has not acquired the right to the patent under another title.

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

Patent protection starts from submission of an application and lasts for a maximum of 20 years from the date of submission. The first term of protection is five years and annual maintenance fees are then due.

A supplementary protection certificate can be obtained, for a maximum of five years, for active ingredients or combinations of them, medicinal products and for plant protective agents.

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

A patent infringement action can be made under civil or penal law against anyone who:

  • Unlawfully uses the patented invention (imitation is deemed to be use).

  • Refuses to indicate to the competent authorities the origin and volume of unlawfully manufactured products, or of products that have been unlawfully put in circulation, in his possession.

  • Removes the patent marking from products or their packages without authorisation from the licensor.

  • Helps, participates in, or facilitates performance of any of these acts.

 
7. Which courts deal with patent infringement actions?

On 1 January 2012, the Federal Patent Court became active. This court replaced the 26 cantonal jurisdictions in patent matters. Its sentences can be appealed to the Federal Supreme Court.

 
8. What are the defences to patent infringement actions?

Defences include:

  • Non-infringement.

  • Nullity of the patent right.

  • Right to be granted a licence.

  • Prior use.

  • Research or teaching privilege.

  • Private, non-commercial use.

  • Exhaustion of patent or patent protection has only subordinated significance for a product mainly protected by other IPRs (such as trade marks) that are exhausted.

  • Forfeiture of rights.

 
9. What are the remedies in patent infringement actions?

Remedies include:

  • Injunctions (preliminary or final).

  • Declaratory judgment.

  • Assignment of the patent.

  • Order to disclose the origin and quantity of the objects in the defendant's possession and to disclose the addressees and the extent of any transfer to commercial recipients.

  • Rendering of accounts.

  • Damages, redress or surrender of profits.

  • Publication of the judgment.

  • Destruction of infringing goods and their removal from the market.

  • Criminal sanctions.

  • Assistance from the customs authorities.

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

There is no answer content for this Question, as it is a new addition to the template that did not exist at the time of writing.

 

Trade marks

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

A trade mark must be a graphically reproducible sign which is distinctive, that is, capable of distinguishing a person's or enterprise's goods or services from those of another, provided no absolute grounds for refusal are given (see Question 14).

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

Trade mark rights are generated on their registration. Registration provides an exclusive right and prima facie evidence of ownership and validity, enabling the owner to file oppositions and bring actions in courts and to request customs protection. It also allows the use of the ® symbol. Furthermore, if a company is sold, it is an advantage to have the trade marks of its respective products and services registered.

The registration appears in availability searches and can be licensed.

Trade marks used abroad and which are well-known in Switzerland within the meaning of Article 6bis of the Paris Convention (notorious marks) enjoy the same protection as a registered mark. Unfair competition law and, in exceptional circumstances, copyright law may provide protection for unregistered marks. There is a right to continue use of an unregistered mark where a third party subsequently registers a conflicting similar trade mark. However, this continued use is restricted to factual and territorial use before the trade mark.

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

The SFIIP registers trade marks (www.ige.ch). Guidance is available on the website.

Trade mark protection for Switzerland is also granted to the owner of an international trade mark registration with a Swiss designation.

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

Registration can be refused if the mark:

  • Lacks distinctiveness.

  • Is misleading.

  • Is contrary to public order, morality or applicable law.

  • The shape constitutes the nature of the goods, or the shape of the goods or of their packaging is technically necessary.

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

Third parties can oppose a trade mark application based on an earlier trade mark application, registration or well-known mark if the marks are identical or confusingly similar and if they cover goods or services that are identical or of the same kind.

Opposition needs to be filed within three months after publication of the national registration. For the Swiss designation of an International Registration the deadline runs from the first day of the month following the publication of the mark in the Gazette WIPO. The SFIIP's decision can be appealed to the Federal Administrative Court.

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

Registered trade mark protection starts from application, lasts for ten years from the application date and is renewable indefinitely.

Unregistered protection lasts as long as the mark is well-known.

A mark that is not used for a continuous period of five years becomes vulnerable to cancellation.

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

A trade mark owner can prevent others from using an identical or confusingly similar mark for goods/services that are identical or of the same kind in the course of trade by:

  • Affixing it to goods or their packaging.

  • Offering goods, putting them on the market, or stocking them for such purposes under the mark.

  • Offering or providing services under it.

  • Importing, exporting, transitting goods (even if for private purposes).

  • Using it on business papers, in advertising or otherwise.

Other grounds include using a guarantee or collective mark in a manner contrary to the applicable regulations.

 
18. Which courts deal with trade mark infringement actions?

One competent court in each canton determined by cantonal law deals with trade mark infringements. Four cantons have a commercial court. A judgment of the cantonal court can be appealed to the Federal Supreme Court.

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

Defences include:

  • Non-infringement.

  • The earlier trade mark is void.

  • Prior use.

  • The earlier mark is not enforceable anymore due to non-use.

  • Private use. This does not apply for the import, export or transit of goods.

  • Use of the mark for information purposes (for example, use of third parties' brands to indicate one's product range).

  • Exhaustion.

  • Forfeiture of rights.

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

These are the same as for patents, see Question 9.

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

There is no answer content for this Question, as it is a new addition to the template that did not exist at the time of writing.

 

Copyright

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

Swiss copyright law protects intellectual creations with an individual character in the field of literature or art and software, irrespective of their purpose or ethical, aesthetic or economic value.

 
23. Can copyright be registered?

Registration is not possible.

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

Protection starts from creation of the work and lasts for 70 years (50 years for computer programs), starting at the end of the year of the author's death.

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

Grounds include an unauthorised person:

  • Manufacturing copies of the work.

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

  • Delivering or performing the work, or making it perceivable in a place other than where it is presented or making it available online.

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

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

  • Making works that were made available, broadcasted or rebroadcasted perceivable.

  • Providing access to computer programs.

Infringement means that a work is used unchanged, or it is changed in a non-creative way or adapted in a way that the individual character of the existing work is still recognised.

The author can also bring an action if his moral rights are violated.

 
26. Which courts deal with copyright infringement actions?

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

 
27. What are the defences to copyright infringement actions?

Defences include:

  • The work does not enjoy copyright protection.

  • Non-infringement.

  • Private use (except software).

  • Parodic use.

  • Exhaustion.

  • Use by a teacher for teaching in class (except software), against compensation.

  • Reproduction in enterprises, public administrations, institutes, commissions and similar bodies for internal information or documentation (except software), against compensation.

  • Archive and back-up copies.

  • Quotations.

  • Reproduction in museum, fair and auction catalogues.

  • Reproduction of a work located in a public place (not in three dimensions and not for the same purpose as the original).

  • Reporting current events.

Additional exemptions from protection exist for broadcasting and music recording companies.

 
28. What are the remedies in copyright infringement actions?

These are the same as for patents (see Question 9) except for the request for an assignment of the copyright.

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

There is no answer content for this Question, as it is a new addition to the template that did not exist at the time of writing.

 

Registered designs

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

Design protection extends to the shapes of goods and parts of goods, characterised by the arrangement of lines, surfaces, contours, colours or by the material which is used, as long as they:

  • Possess novelty, and peculiar character.

  • Are not contrary to public order, morality or applicable law.

  • Have characteristics that are not exclusively technically necessary.

The SFIIP does not check novelty, individuality or whether the characteristics are necessary for technical functionality.

 
31. Which authority registers designs?

The SFIIP (www.ige.ch) registers national designs.

An international design covering Switzerland must be filed with WIPO (www.wipo.int).

Both websites provide guidance.

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

There is no opposition procedure. A third party can challenge a registered design by a civil action on the grounds that one of the conditions for protection (see Question 30) is not met or that it infringes a pre-existing right.

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

Protection starts from the application date and lasts for five years. It is renewable for five-year periods up to four times.

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

The owner of a design has the exclusive right to use the design (or a design that does not create a different overall impression) commercially, that is, to produce, store, offer for sale, market, import, export, transit and possess the design for these purposes. Import, export and transit of commercially manufactured products can infringe a design right even if undertaken for private purposes.

 
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:

  • Non-infringement.

  • Invalidity of the design.

  • Private non-commercial use. This does not apply to import, export or transit.

  • Right of prior use, that is, the design was used in good faith before the registration of the claimant's design or the priority date or during the delay of publication.

  • Exhaustion.

  • Forfeiture of rights.

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

These are the same as for patents, see Question 9.

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

There is no answer content for this Question, as it is a new addition to the template that did not exist at the time of writing.

 

Unregistered designs

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

Swiss law does not recognise unregistered designs.

The owner of an unregistered design may be protected by copyright law and unfair competition law.

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

Not applicable.

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

Not applicable.

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

Not applicable.

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

Not applicable.

 

Confidential information

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

Confidential information is not an IPR. It is defined as knowledge of business-relevant manufacturing and other facts which are neither obvious nor readily accessible, where the owner has a legitimate interest in the secrecy and wishes to keep the information confidential.

It is protected by, among others, general rules of good faith, unfair competition law, employment law and criminal law.

No formalities are required 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 made?

An action for unauthorised use of confidential information can be based on unfair competition, for example if a person:

  • Exploits the marketable result of work entrusted to him without authorisation.

  • Exploits the marketable result of work of a third party, while knowing that the result was made available to him without authorisation.

  • Exploits the marketable result of work by a third party by using technical reproduction procedures without his own corresponding effort.

  • Induces employees, agents or auxiliary personnel to disclose or uncover the manufacturing or business secrets of their employer, or exploits or discloses these in any unlawful manner.

An employee must not make use of or inform others of confidential information that comes to his knowledge while in the employer's service or afterwards.

It is an offence under the Penal Code to disclose an industrial or business secret that one is under a legal or contractual obligation to keep secret, or to use the disclosure for one's own or another's profit. It is also an offence to make trade secrets accessible to official or private foreign organisations or enterprises, or to try to uncover trade secrets for this purpose.

It may be possible to claim for infringement of a contractual obligation not to diverge confidential information.

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

The civil or criminal court that is competent depends on the legal basis of the claim and the value in dispute. The court is determined by the cantons. Judgments can be appealed to the Swiss Federal Supreme Court.

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

Defences include that the:

  • Information was not confidential.

  • Information was not exploited in an unfair manner.

  • Disclosure was required by law.

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

Remedies include:

  • Injunctions to prohibit an imminent infringement.

  • Declaratory judgment.

  • Publication of the judgment.

  • Damages and redress, surrender of profits.

  • Criminal sanctions.

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

There is no answer content for this Question, as it is a new addition to the template that did not exist at the time of writing.

 

The regulatory authority

Swiss Federal Institute of Intellectual Property (SFIIP)

W www.ige.ch

Main areas of responsibility. The SFIIP controls applications for patents, designs and trade marks.

Guidance on application procedure. Guidance is available on its website.


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