SWITZERLAND Law and Practice Contributed by: Peter Schramm, Timmy Pielmeier, Michael Ritscher and Andrea Schäffler, MLL Legal
(d) the Nice Agreement Concerning the Interna - tional Classification of Goods and Services for the Purposes of the Registration of Marks; (e) the Paris Convention for the Protection of In - dustrial Property (Paris Convention); (f) the Convention of 13 April 1892 between Swit - zerland and Germany concerning the Recipro - cal Protection of Patents, Designs and Trade Marks; and (g) the Singapore Treaty on the Law of Trade - marks. Once approved by Switzerland, international legal treaties become an integral part of Swiss law, mean - ing that the provisions of the treaties are, in princi - ple, directly applicable if they are self-executing. For example, the Federal Supreme Court has held that the three-step test set forth in Article 9 paragraph 2 of the Berne Convention is directly applicable in Switzerland. This also applies to the minimum protection set out in the Berne Convention and the WCT, for example. Swiss national law must be interpreted in conformity with the above-mentioned conventions by national courts. 2. Trade Mark Ownership, Protection and Rights 2.1 Types of Trade Marks In principle, a Swiss trade mark is a sign that is capa - ble of distinguishing the goods and services of one undertaking from those of other undertakings. Provid - ed they can be represented graphically, trade marks may be any kind of sign, including: • words; • letters; • slogans; • numerals; • figurative representations; • three-dimensional shapes; or • combinations of such elements with each other or with colours. Scents cannot be protected as a trade mark in Swit - zerland.
The Swiss Trade Mark Protection Act differentiates between individual, collective, certification and geo - graphical marks. Specifically, Swiss law allows trade mark protection of: • service marks; • design marks; • trade dress; • collective marks; • certification marks; • geographic indicators; • product marks (both product design and packag - ing); • industrial designs; and • surnames. In order to meet the increased requirement to keep three-dimensional shapes available to competitors, Swiss law provides an absolute ground for refusal of shapes that constitute the nature of the goods or shapes that are technically necessary. The Swiss jurisdiction provides protection of armo - rial bearings, flags and other State emblems against unauthorised registration and use as trade marks, in accordance with Article 6ter of the Paris conven - tion. Protected public signs include flags and coats of arms of the Swiss Confederation and the cantons, sovereign signs of foreign countries and signs of inter - national organisations. Furthermore, names, abbre - viations and emblems of the United Nations or other intergovernmental organisations may not be protected as trade marks or as elements thereof. Unlike Germa - ny, for example, Switzerland does not provide special protection to the Olympic insignia; Switzerland is not a member of the Nairobi Treaty on the Protection of the Olympic Symbol. According to the “territoriality of trade mark rights”, rights to trade marks acquired by their owners in one state are generally neither automatically recognised nor protected in another state. Thus, the reputation of a sign abroad is, in principle, of no significance. Nev - ertheless, Switzerland provides protection for famous foreign marks that are not yet in use or registered within Switzerland, in accordance with Article 6bis of the Paris Convention and the WIPO Joint Recom - mendation Concerning Provisions for the Protection of
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