SWITZERLAND Law and Practice Contributed by: Peter Schramm, Timmy Pielmeier, Michael Ritscher and Andrea Schäffler, MLL Legal
2.4 Use in Commerce Use prior to application or “(declaration of) intent to use”, as seen in the US for example, is not a require - ment of trade mark protection in Switzerland (see 2.2 Essential Elements of Trade Mark Protection ). Once registered for protection, Swiss law provides a five-year grace period for a trade mark, during which actual use thereof is not demanded by law. After the expiry of the grace period, the trade mark becomes vulnerable insofar as third parties can claim its inva - lidity due to non-use. Such invalidity can be actively claimed by third parties in civil court proceedings (negative declaratory action), as a counterclaim in infringement proceedings or in office procedures relat - ing to declarations of invalidity. Non-use after expira - tion of the grace period does not affect a trade mark’s validity ipso iure. 2.5 Notices and Symbols Trade mark rights exist regardless of the use of sym - bols such as ®. However, the use of symbols is admis - sible and does not cause negative legal consequences under Swiss law, unless such use constitutes an act of unfair competition. Misleading advertising would be constituted by using the symbol ® or TM, for example, after trade mark protection has lapsed. 2.6 Related Rights A trade mark can be protected by copyright or related rights – eg, in the case of a logo – if the respective sign meets the terms of protection. There is no exclusiv - ity between the different IP rights in Switzerland, but the different regimes of protection are applicable in cumulation. For example, to enjoy protection under copyright law, a logo would need to be an intellectual creation of individual character. Other related rights are rights under name and personality law, compa - ny name law and unfair competition law. The rules under unfair competition law are regularly invoked in connection with trade mark disputes and may offer a good legal alternative to successfully enforce against unauthorised use of marks. Surnames can be protected by trade mark law in Swit - zerland (see 2.1 Types of Trade Marks ). However, a trade mark application would be rejected if the rel - evant public considered the name to be descriptive in
relation to the goods claimed (eg, Mozart for music). Should the application violate a person’s moral rights to their name (confusion about the name), the persons or descendants might be entitled to a cancellation of the respective trade mark. A trade mark depicting a copyright-protected work (eg, a logo) without the rights-holder’s consent would constitute a copyright violation and entitle the rights- holder to a cancellation of the respective trade mark. 3. Copyright Ownership, Protection and Rights 3.1 Types of Copyrightable Works Swiss law provides the following non-exhaustive enumeration of specific categories of works that are potentially subject to copyright protection, under Arti - cles 2 (2), (3) and (4), 3 and 4 of the Swiss Copyright Act: • literary, scientific and other linguistic works; • musical works and other acoustic works; • works of art, in particular paintings, sculptures and graphic works; • works with scientific or technical content, such as drawings, plans, maps or three-dimensional repre - sentations; • works of architecture; • works of applied art; • photographic, cinematographic and other visual or audiovisual works; • choreographic works and works of mime;
• computer programs (software); • drafts, titles and parts of works;
• derivative works; and • collections of works.
Swiss copyright law provides protection consistent with the obligations constituted by international law. Accordingly, industrial designs are entitled to copy - right protection as works of applied art in accordance with Article 2 (1) of the Berne Convention. Statutory law does not provide for specific or additional require - ments for protection. Consequently, industrial designs are copyright protected if they meet the general con - ditions for protection laid down in Article 2 (2) of the
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