SWITZERLAND Law and Practice Contributed by: Peter Schramm, Timmy Pielmeier, Michael Ritscher and Andrea Schäffler, MLL Legal
invoked in connection with trade mark disputes and may offer a good legal alternative to suc - cessfully enforce against unauthorised use of marks. Surnames can be protected by trade mark law in Switzerland (see 2.1 Types of Trade Marks ). However, a trade mark application would be rejected if the relevant public considered the name to be descriptive in relation to the goods claimed (eg, Mozart for music). Should the appli - cation violate a person’s moral rights to their name (confusion about the name), the persons or descendants might be entitled to a cancella - tion of the respective trade mark. A trade mark depicting a copyright protected work (eg, a logo) without the rights-holder’s con - sent 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 Articles 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, sculp - tures and graphic works; • works with scientific or technical content, such as drawings, plans, maps or three- dimensional representations;
• 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 con - sistent with the obligations constituted by inter - national law. Accordingly, industrial designs are entitled to copyright 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 requirements for protection. Consequently, industrial designs are copyright protected if they meet the general conditions for protection laid down in Article 2(2) of the Swiss Copyright Act (see 3.2 Essential Elements of Copyright Protection ). The federal Supreme Court holds the opinion that a work of applied art can only be protected by copyright law if the respective creation reaches at least the threshold of protection under design law (“individual character”). A significant factor in determining protection is therefore the absence of prior art and, for example, the influence of the design in question on the subsequent history of design art. Protection can also be supported by the fact that the design has a “surprising effect” on the observer, meaning that its purpose is not recognisable at first glance. In some cases, Swiss case law unfortunately still requires a so- called statistical uniqueness as a condition for protection. It remains unclear whether the Cofe - mel and Mio rulings and the Kwantum decision will have a liberalising and clarifying effect on Swiss case law. Databases can theoretically be protected as collections of works, but rarely ever meet the
• works of architecture; • works of applied art;
634 CHAMBERS.COM
Powered by FlippingBook