SWITZERLAND Law and Practice Contributed by: Peter Schramm, Timmy Pielmeier, Michael Ritscher and Andrea Schäffler, MLL Legal
Influence of Foreign Case Law on Swiss Court Decisions As mentioned before, Swiss courts rely heavily on jurisdiction in the EU and its member states, particularly Germany, to assess unclarified legal questions in Switzerland. The legislature’s rea - sonings provided alongside IP statutory law regularly declare alignment with EU law as an explicit objective of Swiss legislation. This can be considered a legal basis for the application of European judgments in Switzerland when assessing statutory law, its meaning and its objectives. 12.2 Trade Mark and Copyright Use on the Internet Marketing products on the internet, in general, follows the same rules as every other sales plat - form. If trade mark rights or copyrights are vio - lated, the owner has the right to prohibit such use by invoking trade mark and copyright law. Unlike many other jurisdictions, such as Ger - many, the Swiss private use exception allows the downloading of copyright protected content under Article 19 of the Swiss Copyright Act. So- called “illegal streaming” by privates therefore does not constitute copyright infringement in Switzerland. The 2019 copyright reform introduced a stay- down obligation for hosting providers (Arti - cle 39d of the Swiss Copyright Act); see 12.1 Emerging Issues . This rule applies exclusively to copyright and is not (directly or by analogy) applicable to trade mark law.
performing artists (Article 35), with compul - sory collective management for the assertion of corresponding claims. • An express exception from copyright protec - tion for text and data mining for scientific purposes has been introduced in Article 24d. Landmark Judgments The Swiss legal system produces a relatively small amount of case law. Consequently, the fol - lowing judgments have had significant impact. • In 2022, the Swiss Federal Supreme Court confirmed copyright protection for a Barbe - cue-Grill (so-called “Feuerring”) as a work of applied art, considering inter alia a “surpris - ing effect” the design communicates to the observer. • The Berne Commercial Court confirmed copyright protection for a musical instrument (so-called “Hang”) as a work of applied art, considering inter alia questions of technical determination and prior art. • The Swiss Federal Supreme Court con - firmed trade mark protection of two three- dimensional marks depicting the “Lindt Gold Bunny” and granted injunctive relief against a similar chocolate gold bunny despite several differences in design. • The Swiss Federal Supreme Court held that the customisation of originals of high-quality branded watches (Rolex case) does not con - stitute trade mark infringement if the modified product is provided to the contractor by the customer. The placing of modified goods on the market, on the other hand, constitutes trade mark infringement.
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