SWITZERLAND Law and Practice Contributed by: Lukas Morscher, Lukas Staub and Jil Eichenberger, Lenz & Staehelin
do have oversight responsibilities depending on the nature of the game. The Federal Social Insurance Office (the “FSIO”) and the Federal Council oversee the compliance of the relevant cantonal authorities with age restrictions for video games and other media, ensuring the legal requirements are met. The YPA grants them the authority to revoke age classifications if the standards are deemed inad - equate. In Switzerland, gambling games are categorised into three categories: • casino games; • major games; and • minor games. Casino games are available in both physical casinos and online, include roulette, blackjack, poker, punto banco and slot machines. Offering these games requires a casino concession from the Federal Council and an operating permit from the ESBK, which also oversees casinos. Major games, which are also offered online, encompass lotteries, sports betting and games of skill and are licensed and supervised by the intercantonal gambling supervisory authority (the “Gespa”). Minor games, which are not available online, include small poker tournaments, local sports betting and small lotteries and are regulated by cantonal authorities. The ESBK or the Gespa can block access to websites offering illegal online gambling. Viola - tions of the SGA can result in penalties of up to three years’ imprisonment or fines for felo -
nies and misdemeanours and fines of up to CHF500,000 for contraventions. 9.3 Intellectual Property Under Swiss law, video games are protected as audiovisual works and/or software works under copyright law. If intellectual property rights, such as copyrights or trade marks, are infringed (eg, unauthorised use of a work or a trade mark with- in a game), remedies under Swiss law include cease and desist orders, damages or actions to stop further infringement. The Federal Supreme Court addressed the issue of sale and distribution of video games in 1998, notably in the Nintendo case, where it estab - lished the principle of international exhaustion of copyright. Therefore, importing and selling video games in Switzerland, after lawful release abroad with the copyright holder’s consent, does not infringe copyright. This principle was reaffirmed in a later case in 2007, emphasising that video games are not subject to the national exhaustion exception for certain audiovisual works. Additionally, user-generated content in video games is protected by IP law in Switzerland, provided it meets the originality and creativity thresholds required for copyright protection. Overall, Switzerland’s IP framework supports a broad and technology-neutral application of copyright and trade mark law, ensuring robust protections for various aspects of the gaming industry. Copyright for Virtual Goods and Assets Establishing copyright protection for virtual goods in games is challenging. Swiss law requires works to be the result of personal intel - lectual creation with individual character. Virtual items generated through gameplay or automat - ed processes, such as those earned in-game,
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