SWITZERLAND Law and Practice Contributed by: Lukas Bühlmann, Michael Reinle and Michael Schüepp, MLL Legal
Trade mark and copyright laws Trade mark and copyright laws must be considered if third-party trade marks and pictures are used – for example, for the description of the prize if it is a third- party branded product. The Swiss Gambling Act (Geldspielgesetz) Sweepstakes and contests are most likely to be quali - fied as money games. The statute generally requires money games to have an approval/licence. However, certain sweepstakes and contests are excluded from the Gambling Act. Sweepstakes and contests with free participation are most likely not within the scope of the Swiss Gambling Act. Approval is therefore not needed. However, the free participation option must provide the participants with an equal winning chance to that of paid partici - pants. Nevertheless, so far there has been no decision in this respect. Even if participation in a sweepstake or contest were not free (ie, if the participants had to purchase a prod - uct or conclude another contract in order to partici - pate), the respective sweepstakes and contests could be exempted from the approval requirement. Short- term promotional lotteries and games of skill that do not involve the risk of excessive gambling, and where participation is exclusively through the purchase of goods or services offered at no more than market price, are exempted from the Swiss Gambling Act (Article 1 (2)(d), Swiss Gambling Act). 7.2 Contests of Skill and Games of Chance The Swiss Gambling Act distinguishes between con - tests of skill and games of chance (lotteries). Contests of skill are defined as money games in which the winning chance depends entirely or mainly on the skill of the player (Article 3 littera d Swiss Gambling Act). Money games are defined as games in which there is the prospect of a monetary gain or other mon - etary advantage in return for a monetary stake or the conclusion of a legal transaction (Article 3 littera a, Swiss Gambling Act). Games of chance or lotteries are defined as money games that are open to an unlimited or at least a high
technologies. It should also be noted that the stricter provisions of EU law with the opt-in principle may also
apply to Swiss companies. 6.5 Marketing to Children
There are no specific regulations with regard to the processing of personal data of children. However, the fact that the personal data of children is collected must be taken into account, particularly in connection with the transparency principle. Information provided to children about data processing must be written in a way that is understood by children. If consent is needed for data processing, not only is consent from the child needed but so also is approval from their parents in the case of minors. 6.6 Other Rules Apart from the DPA itself, the most important priva - cy-related provisions for advertising are contained in the UCA and the Telecommunications Act, and have already been explained in previous sections. 7. Sweepstakes and Other Consumer Promotions 7.1 Sweepstakes and Contests General Requirements The following requirements must be complied with when conducting sweepstakes and contests. Data privacy laws The processing of personal data in connection with sweepstakes or contests must comply with data pri - vacy laws. If personal data submitted by participants shall also be used for purposes other than the conduct of the sweepstake/contest, the participants must be informed about this other purpose and consent might be necessary – in particular for email marketing. Unfair competition laws Unfair competition laws require transparent informa - tion about the sweepstake/contest – in particular about eligibility for participation, the participation period, how to participate, the prize, etc.
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