SWITZERLAND Law and Practice Contributed by: Lukas Bühlmann, Michael Reinle and Michael Schüepp, MLL Legal
4.4 Ambush Marketing There are no special rules and, therefore, the gen - eral rules apply (see 1.1 Primary Laws and Regula- tion ). For ambush marketing, Article 3 (1)(e) UCA is of particular importance and it must be assessed to what extent the advertiser compares itself, its goods, works or services in an unnecessarily condescending manner with the goods, works or services of other companies. The interpretation of the term “compare” is very broad, and therefore other measures are pro - hibited that unnecessarily aim to transfer the image of someone else to oneself or to one’s own products. 5. Social/Digital Media 5.1 Special Rules Applicable to Social Media There is no specific statute dealing with advertising in social media. The general provisions mentioned in 1.1 Primary Laws and Regulation apply. Furthermore, Principle B.15 (1) of the SFCC requires that advertising for third parties in posts on social media platforms must be recognisable as advertising. It should be noted that the average addressee of advertising on digital media might differ from other communication channels (see 2.1 Deceptive or Mis- leading Claims ). This was emphasised by the SFCC in decisions regarding influencer marketing on Ins - tagram. It mentioned that the addressees of the respective posts were the followers of the Instagram account of the respondent. The average addressee was described as follows: “[A] follower decides for themselves which persons or companies they want to follow. It can be assumed that the average Swiss followers of the respondent’s account are interested in the respondent’s sports his - tory and life. A follower wants to learn more about the respondent, their career and life by following the Instagram account. They are more interested in and better informed about the respondent than someone who is not a follower of the account.” See, for example, appeal decision of 6 May 2020 (No 154/19 and 159/19), reference No 14.
casting time. Inserts are not permitted in children’s programmes. 3.5 Special Rules for Native Advertising There is no specific statutory provision dealing with native advertising. The general provisions mentioned in 1.1 Primary Laws and Regulation apply. However, Principle B.15 of the SFCC concretises the general provisions and sets out special rules regarding the separation of commercial communication from edi - torial content. Commercial communication must be recognisable as such and must be strictly separated from editorial content. Commercial communication must be flagged as sponsored/advertising or similar. Comparative advertising is prohibited if it is executed in an inaccurate, misleading, unnecessarily dispar - aging or unnecessarily imitating manner, or where it favours third parties in competition in a corresponding manner (Article 3 (1)(e) UCA). Article 3 (1)(e) UCA even applies if no specific com - petitor or product is mentioned (indirect comparison). It is sufficient that the advertiser’s own products and services are compared, even implicitly, with other specified or specifiable products and services. 4.2 Competitor Copyrights and Trade Marks As long as the requirements mentioned in 4.1 Specific Rules or Restrictions are met, the use of competi - tors’ names, trade marks or packaging will regularly be allowed. 4.3 Challenging Comparative Claims Made by Competitors 4. Comparative Advertising and Ambush Marketing 4.1 Specific Rules or Restrictions As discussed in more detail in 1. Legal Framework and Regulatory Bodies , advertisers affected by com - parative advertising may challenge claims in civil liti - gation, criminal law proceedings or with a complaint to the SFCC.
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