The principal source of national law relating to trade marks is the Swiss Trade Mark Act. Subsidiary provisions concerning the registry and the registration procedure are set out in the Trade Mark Ordinance.
Switzerland is party to a number of international treaties in relation to trade marks, including the Paris Convention, the TRIPs Agreement, the Madrid Agreement and the Madrid Protocol, the Trade Mark Law Treaty (TLT), the Nice Agreement concerning the International Classification of Goods and Services, and the Vienna Agreement Establishing an International Classification of the Figurative Elements of Marks.
The courts are, in principle, not bound by the opinions and decisions of other national courts that have dealt with similar cases. The cantonal courts are not even bound by the opinions of the Federal Supreme Court - except when a decision of a cantonal court has been remanded by the Federal Supreme Court, in which case the cantonal court in handing down a new decision is bound by the opinion of the Federal Supreme Court. In practice, however, the opinions of the Federal Supreme Court are, therefore, generally binding for lower instance courts. Although decisions of foreign courts are not binding for Swiss courts, they are generally taken into account as an important additional source of inspiration.
International treaties which Switzerland has adopted and are binding on it acquire immediate national validity (self-executing character). There is no need, therefore, to enact special laws to transform them into national legislation (although international agreements are generally ratified only after adapting Swiss national legislation, if and when this is necessary).
In the event of a conflict between international and national laws, it is generally recognized that international law takes precedence over national law. In previous rulings the Federal Supreme Court has considered that binding provisions in federal law that are contrary to international law prevail if the legislator knowingly adopted such provisions that contradict international law. In a newer ruling, however, the Federal Supreme Court seems to admit the unrestricted validity of the principle that international law takes precedence over national law.
Switzerland distinguishes between famous trade marks, well-known trade marks and trade marks with acquired distinctiveness. Contrariwise, a "trade mark with a reputation" is not a notion of Swiss trade mark law; the reputation alone is not sufficient to establish protection as a trade mark. However, reputation is significant for the qualification as well-known or famous trade mark and trade marks with a reputation enjoy a certain protection under unfair competition law.
Well-known trade marks enjoy a certain protection regardless of whether they are registered in Switzerland. A trade mark is well-known if it has a reputation with the relevant audience. A well-known trade mark can serve as a relative ground for refusal of the registration of a new trade mark if it is considered as an earlier trade mark within the meaning of Article 6bis of the Paris Convention or Article 16 alinea 2 TRIPS. The protection of a well-known trade mark is limited to specific goods and services.
Famous trade marks enjoy a broader protection in Switzerland. The proprietor of a famous trade mark may prohibit others from using his trade mark for any type of goods or services (regardless of the registered goods and services), if such use threatens the distinctiveness of the trade mark or exploits or damages its reputation. The law does not define the term "famous trade mark". Doctrine and jurisprudence require:
in order to qualify as famous trade mark.
Signs that are in the public domain can acquire distinctiveness in connection with goods and services for which they are used. Such distinctiveness requires that a substantial part of the relevant public associates the sign with a certain commercial origin. Signs that acquired distinctiveness can be protected as trade marks, unless there is an absolute need for availability.
No special protection is awarded to the luxury industry under Swiss law. Enforcement of trade marks is detached from the industry concerned. An "aura of luxury" may, however, be relevant under unfair competition aspects, if further criteria are met (for example, with respect to disparaging uses or imitating advertising practices).
The evidence for the establishment of a famous trade mark can be, but is not required to be, brought by way of a market survey. Sales figures and documents related to promotion and sponsoring can also be indicative of famousness.
In order to obtain protection as a trade mark with acquired distinctiveness, a market survey must be conducted in most cases. Documents showing the use for many years, the advertisements and high sales can serve as indices, and can be sufficient for traditional signs.
A well-known trade mark is established if it can be credibly shown with objective evidence that the trade mark is well-known to the relevant audience. The same applies with respect to trade marks with acquired distinctiveness (except for the relevant audience and the relevant geographical scope).
There are no fixed thresholds that must be met to establish a broader protection of a trade mark. However, certain benchmarks have been developed by legal practice. For a famous and a well-known trade mark at least 50% of the relevant audience should know the trade mark. In order to acquire distinctiveness, the benchmark is at 60-70% for unconventional trade marks.
A trade mark owner can enforce his trade mark against a domain name, a trade name or any other distinctive signs where such signs are confusingly similar to the owner's trade mark, and where they are used as trade marks (and not for example, in a descriptive or decorative manner).
It is controversial whether a trade mark can be enforced against a metatag or a keyword. Use of metatags and keyword advertising is mostly considered descriptive and, thus, non-infringing use. However, metatags and keywords may be problematic from an unfair competition law point of view.
A trade mark can be enforced against its unauthorized use in social media if it is used as a mark and in the course of trade. So-called fan sites are often not used in the course of trade. Rating platforms or automatically generated profiles are informative and thus, allowed. The same applies to social discussions about trade marks where both requirements are not met. If the Swiss Trade Mark Act is not applicable, and the general terms and conditions of the platform operators do not contain any regulations, protection may be obtained by unfair competition law, or, in specific circumstances, copyright law or naming rights.
The use of third party trade marks in comparative advertising is permitted as informative use providing such use is constrained to what is necessary for the comparison. If a third party trade mark is used in advertising to benefit from such trade mark, or to harm such other trade mark, unfair competition law provides for certain remedies. For famous trade marks the Swiss Trade Mark Act gives such additional protection.
Parodies are considered to be allowed as long as the parody is evident as such and thus, a "use as a trade mark" can be excluded.
A trade mark holder can bring a lawsuit claiming both trade mark infringement and unfair competition in the same proceedings.
The principal source of national law relating to copyright is the Swiss Copyright Act. Subsidiary provisions mainly concerning the Federal Arbitration Commission for Copyright (which oversees the tariffs applied by copyright collecting societies) are set out in the Copyright Ordinance.
Switzerland is party to a number of international treaties in relation to copyright, including the Berne Copyright Convention, the Universal Copyright Convention, the WIPO Copyright Treaty, the WIPO Performances and Phonograms Treaty, the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations, the Convention for the Protection of Producers of Phonograms against Unauthorised Duplications of their Phonograms, and the Convention relating to the Distribution of Programme-Carrying Signals transmitted by Satellite.
Works obtain protection under the Swiss Copyright Act if they are literary and artistic creations of the mind, irrespective of their value or purpose, and which possess an individual nature. "Creation of the mind" means that the work must have been created by a natural person, that is, by an author. The creation of the mind must become manifest in a certain form. Mere ideas or thoughts are not protected under copyright law. "Individual nature" means that the work has to have features based on which the work is distinguishable from other works and stands out from common, elementary works. The level of individuality required for copyright protection cannot be defined precisely and depends on the category to which a work belongs. "Literary and artistic" has a very broad meaning. The Swiss Copyright Act provides for an open list that identifies the categories of works which are considered as copyrightable. They include literary and musical works, artistic works such as drawings, paintings and sculptures, works with a scientific or technical content such as drawings, plans or maps, works of architecture, works of applied art, photographic and cinematographic works, choreographic works and pantomimes. Furthermore, the Act states that computer programs shall also be deemed works.
Collections of works, which, by reason of the selection or arrangement of their content, constitute intellectual creations embodying an individual character, are protected without prejudice to the copyright in the works which are part of such collection.
Translations, audiovisual and other adaptations of copyright works are protected as such without prejudice to the copyright in the used works.
The Swiss Copyright Act also enumerates the sorts of works which are excluded from protection: laws, ordinances, international treaties and other official instruments; means of payment; decisions, records and reports of authorities and public administrations; patent specifications and published patent applications; official or statutory collections and translations of the aforementioned works.
An industrial design is in principle copyrightable. However, mere industrial products are rarely granted copyright protection according to Swiss jurisprudence. Typical examples of industrial design copyright are works of applied art, such as the design of products or packaging. Copyright protection of industrial designs is further recognised for furniture, lamps, textiles, embroidered textiles and to a certain extent also for watches.
If the form of the industrial design is dictated by the function or where there is no room for individual creativity, protection is limited or even excluded, because the criteria of individuality cannot be fulfilled.
In general, the copyright owner has the exclusive right to decide whether, when and how his work is to be used. In particular, the copyright owner has the exclusive right to exploit the copyright work, that is, to manufacture copies of the work and to distribute them to the public, to publicly perform the work, to record or broadcast it, to rebroadcast the work and to communicate broadcasts and rebroadcasts to the public. Furthermore, the author of a computer program has the exclusive right to rent such program. The enumeration of exclusive exploitation rights is open, so that, in the future, new technological means of exploitation vest a new exclusive exploitation right in the author.
In addition, the Swiss Copyright Act protects the following moral rights of authors:
The Swiss Copyright Act also provides the following rights which may be considered moral rights: the owner of a copyright work is required to provide access to the author at any time, insofar as execution of his rights requires him to see the work. Furthermore, the author is entitled to claim a copy of the work for exhibition in Switzerland if he is able to prove an overriding interest. Moreover, prior to destroying an original work of which no other original copies exist, its proprietor is obliged to offer it to the author for an amount not exceeding the material value of the work.
Finally, the Copyright Act recognises neighbouring rights of performers, producers of sound recordings and audiovisual recordings, and broadcasting organisations. The owners of these neighbouring rights also have the exclusive right to exploit their performances, recordings and broadcasts, that is, to manufacture copies of them and to distribute them to the public, to publicly perform them, to record or broadcast them, to rebroadcast them and to communicate these broadcasts and rebroadcasts to the public.
This catalogue of exclusive rights is limitative.
The Swiss Copyright Act protects the moral right of the performer to be identified as the performer of the work.
According to the principle of "creation of the mind", the author has the exclusive right to his own work. Accordingly, employees, consultants, shareholders, directors or suppliers keep the exclusive right to his/her/their work in the absence of any contractual stipulations. The only exceptions to this rule are rights to computer programs under an employment contract in the course of discharging professional duties or fulfilling contractual obligations according to which the employer alone shall be entitled to exercise the exclusive right of use. In the case more than one person has contributed as authors to the creation of a work, copyright belongs to all such persons jointly. Subject to the non-transferable copyrights (see below), a legal entity can acquire the rights in works and especially the right to use through assignment.
The assignment of copyrights requires a valid contract and a transfer of ownership, which are both not subject to any form requirements.
Even though written form is not required for assignments, it is recommended to draft a written contract for evidentiary reasons. Precaution is required in relation to moral rights, because their transferability can be limited. Further precautions are necessary in the presence of copyright collecting societies, because an individual commercialisation can be excluded in such case.
It is disputed to what extent moral rights can be transferred. Generally it is agreed that core moral rights cannot be transferred. Excluded from transfer are the right of integrity, the right of paternity, the author's right of access and exhibition and the protection against destruction. The dominant literature and the Federal court admit that non core moral rights, such as the right to decide on whether, when and how a work may be altered or used to create a derivative work or be included in a collected work and the first publishing, can be transferred. As an alternative to the transfer it is possible to renounce to exercise the moral rights.
In Switzerland, a work enjoys copyright protection as soon as it is created. The protection lasts 70 years from the author's death. This time period is counted from 31 December of the year of the author's death. Apart from this general rule, Swiss law provides for other special rules.
In the case of computer programs, protection expires 50 years after the death of the author.
Where the death of the author is not certain no protections shall subsist when there is reason to believe that the author deceased more than 70 years ago (or 50 years for computer programs).
The protection for collective works lasts 70 years (or 50 years for computer programs, respectively) from the death of the last surviving co-author, unless the respective contribution of each of the authors can be separated, in which case each contribution enjoys its own status.
In the case of films and other audiovisual works, the 70 year term of protection is calculated from the death of the director alone.
Where the author of a work is unknown, protection for that work ends 70 years after the first publication or, if the work was published in instalments, 70 years after the final instalment.
The protection for neighbouring rights lasts 50 years from the end of the calendar year in which the performance took place, the recording or film was made or the broadcast was initially aired.
Swiss law does not provide for any formal requirement for the protection of copyrighted works such as registration or fixation of the work. A copyright deposit is neither necessary nor possible.
Similarly, a copyright notice is not required. It is, however, usual and recommended to indicate the subsistence of copyright in a piece of work by placing an appropriate copyright notice on it, since the Swiss Copyright Act states that the indicated person is deemed to be the author of the work unless proved otherwise. There is no copyright register. Nevertheless, it is recommended to document when and where the design was created.
As a general rule, substantial similarity is sufficient to establish copyright infringement. Copyright infringement arises in the following cases:
A copyright holder can enforce his copyright against a trade mark, a domain name, a trade name, a pseudonym or any other distinctive sign where such signs are used in commerce in a manner so that the individual features of the copyright protected work are still recognisable.
A copyright can be enforced against its unauthorized use in social media under the same conditions and limitations as other copyright infringements, the private use exception playing a major role in such context (see below). The author has the exclusive right to decide whether, when and how his work is used, irrespective of whether his work is used online or not.
The Federal Government is in the process of preparing a draft bill with the aim to adapt the obligations and rights of creative artists, consumers and providers to the reality of the internet. Amongst others, such a draft shall include a statutory basis for forcing internet access providers to block access to infringing content and to extend liability for copyright infringement to the owner of the internet connection that is used to commit the infringement.
Based on unfair competition law, unauthorized use of a copyright in comparative advertising can be prohibited if the comparison is made in a deceptive, disparaging, incorrect or unnecessary referencing manner.
It is permissible to use existing works or recognisable variations thereof for the creation of parodies if:
If these conditions are not met, copyright can be enforced against the use of a work in "parody".
The alleged infringer may challenge the validity of the copyright. He may, for instance, contend that the work lacks individuality and, therefore, does not constitute copyrightable subject matter.
The alleged infringer may also contest the plaintiff's entitlement to the work. For instance, if the work was created by an employee or contractor, the alleged infringer may argue that the copyright has not been properly assigned to the plaintiff (such argument would not apply to computer programs, however, since the employer holds the exploitation rights to such programs by law).
Furthermore, the defendant may argue that the alleged infringing acts are exempted from copyright infringement. In Switzerland, no general fair use doctrine comparable to the defense developed by US courts is applicable. Instead, the Copyright Act lists specific limitations of copyright law that can, amongst other, serve as defense to an alleged infringer.
One important limitation is the private use exemption, that is, any use of a work in the personal sphere or within a circle of persons closely connected to each other (such as relatives or friends) is exempted from copyright infringement.
Another limitation on copyright is the use for educational purpose. Furthermore, reproduction of copies of a work in enterprises, public administrations, institutes, commissions and similar bodies for internal information or documentation is allowed. However, these exceptions of "fair use" do not apply in relation to computer programs.
The Swiss Copyright Act provides for further limitations, such as:
In addition, the alleged infringer may argue exhaustion of rights if a copy of the work has been sold anywhere in the world by the copyright holder or with the copyright holder's consent. (Switzerland adheres to the principle of international exhaustion in copyright law, with one exception regarding audiovisual works.)
Finally, the alleged infringer may argue that the copyright holder is estopped from enforcing an otherwise valid and infringed copyright due to lapse of substantial time. This defense is, however, limited to rare cases where the copyright holder by his conduct has given the alleged infringer reasonable grounds to believe that he would not bring any claims for copyright infringement. Mere inactivity of the copyright holder even for a longer time is generally not sufficient.
All monetary claims become time-barred after ten years at the latest, unless otherwise provided by Swiss federal civil law. With respect to claims for damages, such a claim becomes time-barred one year from the date on which the injured party became aware of the loss or damage and of the identity of the person liable for it, but in any event ten years after the date on which the loss or damage was caused. If the action for damages is derived from an offence for which criminal law envisages a longer limitation period, that longer period also applies to the civil law claim.
With respect to claims for surrender of profits in the case of business conducted in the agents' interests the general 10 year limitation period is applicable.
As regards claims based on unjust enrichment, a claim for restitution for unjust enrichment becomes time-barred one year after the date on which the injured party learned of his claim and, in any event, ten years after the date on which the claim first arose.
The calculation of the period of the statute of limitation begins with the commencement of the infringement. In case of ongoing infringement the statute of limitations starts running once the infringer ceases the infringement.
There are several grounds for suspension of the statute of limitation, above all filing a court action.
The claims for injunctive relief are not subject to any statute of limitations. They are, however, subject to forfeiture (also referred to as acquiescence). There is no fixed time period after which the plaintiff forfeits his rights. This will depend on the circumstances of each individual case. However, forfeiture will normally occur if the plaintiff has knowingly tolerated infringement for well over five years.
In Switzerland, a copyright holder can bring a lawsuit claiming all copyright and design infringement as well as unfair competition for the same set of facts in the same proceedings.
The principal source of national law relating to designs is the Swiss Design Act. Subsidiary provisions concerning the procedures and standards to be applied by the Swiss Federal Institute of Intellectual Property as competent registration authority are set out in the Design Ordinance.
Switzerland is party to a number of international treaties in relation to designs, including the Hague Agreement Concerning the International Registration of Industrial Designs, the Locarno Agreement Establishing an International Classification for Industrial Designs, the Paris Convention and the TRIPs Agreement.
The appearance of a product or of parts of products characterized by the arrangement of lines, surfaces, outlines, colours or materials is protectable to the extent it is visible and aesthetically motivated. The design and the product must be separate, therefore, texts, pictures or plans cannot be designs. Only the design of industrial or handicraft items is protectable. Therefore, only the concrete embodiment of a creative idea is capable of protection under Swiss design law. Abstract ideas, styles, theories, services, procedures, concepts or materials are excluded from protection. In particular, the following products do not meet the definition of design in Switzerland: computer programs, photographs, books, simple words, images, moving images, fragrances and smells, topographies and simple graphic symbols. Intellectual content is also not eligible for protection by a design, as it does not contribute to the appearance of a product.
The Design Act does not grant protection for unregistered designs. However, unregistered designs may be protected under copyright law or unfair competition law.
A design is capable of protection under the Swiss Design Act to the extent that it is new (formal novelty) and has individual character or is original (substantive novelty).
A design will not be considered to be novel if an identical design has been disclosed to the public prior to the date of filing of the application or, if priority is claimed, the date of priority, which could have been known to the relevant "involved public" in Switzerland. Novelty is thus assessed by comparison to all pre-existing designs reasonably similar or close to the design that protection is applied for, which have been disclosed and are considered to potentially have been known by the relevant public. It is thereby required that a design is novel from an "objective" point of view, in that, it is not sufficient if the designer individually developed the design without copying it from a third party ("subjective" novelty). The assessment of identity is performed based on the combination of the features in their entirety, that is, a dissecting assessment of the individual features is not permitted.
A design is considered to have individual character if its major characteristics (that is, the overall impression) differ substantially from those of existing designs which could have been known to the relevant involved public in Switzerland. A design will lack individual character if it is commonplace or merely reproduces pre-existing designs. The individual character is to be assessed based on the design itself and not the designer. While there is no rule for a minimal amount of individual character, it is clear that the law does not intend to protect every single minimal deviation from the known prior designs. Individual character in Swiss design law is not equivalent to individual character in Swiss copyright law. The threshold is lower in design law.
Design protection is explicitly excluded if a design:
The rights to designs resulting from an employment relationship are set out in the Swiss Code of Obligations and are part of the specific rules on employment contracts. Designs produced by the employee alone, or in collaboration with others in the course of his work for the employer and in performance of his contractual obligations, belong to the employer.
With respect to designs produced by the employee in the course of his work for the employer but not in performance of his contractual obligations, the employer may reserve the right to acquire such designs by written agreement. An employee who produces such a design must notify the employer thereof in writing, whereupon the employer must inform the employee within six months if he wishes to acquire the design or release it to the employee. Where the design is not released to the employee, the employer must pay him a separate, appropriate remuneration to be determined with due regard to all pertinent circumstances (in particular the economic value of the design, the degree to which the employer contributed, any reliance on other staff and on the employer's facilities, the expenses incurred by the employee and his position in the company).
A design created by consultants, shareholders, directors and suppliers can be acquired by assignment due to the freedom of contract under Swiss law.
To be valid, a design assignment agreement must be in writing. However, it is not required that the transfer is registered in the Design Register.
Under Swiss law, not only a registered design right may be transferred but also the prospective right to a design right which has not yet been registered or not even yet been filed (as long as the future right may clearly be determined). It is therefore important to clearly define in the relevant agreement which rights are transferred. The wording should make clear that the transfer occurs automatically upon creation of the relevant designs. If the parties do not wish an automatic transfer but prefer an option right the agreement should contain respective wording. Finally, in employment agreements the right of the employer to acquire designs produced in the course of the employee's work but not in performance of his duties, should be expressly reserved.
When a design right is assigned, it is necessary to first determine who is the entitled person and thereafter to determine whether the right has in fact been transferred. Design rights may not be transferred partially, nor may singular rights out of a design be transferred individually.
The only moral right which Swiss design law grants to the designer is the right to be named as designer in the register. Such right can neither be transferred nor waived.
The protection of a design begins from the date of filing and lasts for five years, with the option to renew protection for another four five-year periods.
Thus, a design can be protected for a maximum time of 25 years.
An unregistered design might be protectable under the copyright law. For the protection period see 2.2 above.
Design protection is not limited to actual copying but extends to all designs which exhibit the same substantial characteristics and thus produce the same overall impression. The infringement assessment starts with the determination of the overall impression of the registered design by combining the substantial characteristics of the deposited material to a whole. Only what leaves the observer with a lasting impression, can qualify as substantial character. The same determination of the overall impression needs then to be done with the potential infringing design. The assessment of the overall impression of the infringing design can only be related to the product in the absence of any register entry. Finally, both ascertained overall impressions have to be compared based on the overall impression with respect to its memorable characteristics. A detailed comparison between the specific substantial characteristics should be avoided.
Not only the actual infringement but also a potential infringement can lead to an infringement action. A potential infringement is however only given if there is a sincere and real existing danger of a potential infringement.
Unregistered designs may only be protected under copyright law or unfair competition law if the respective requirements apply.
If design-protected features of a product are also registered as a trademark, a design may be enforced against the use (not the registration) of such trade mark, if such trade mark use does not occur to designate the origin of the goods (no use as a trade mark), but has aesthetic purposes.
A design holder can enforce his design right against a registered design based on prior use. If two registered designs are at stake the prior right prevails.
A design can be enforced against a more recently registered patent if the design is within the application scope of the patent (and vice versa).
A design may be enforced against a copyrighted object if the latter represents an everyday item or commodity.
Given their different scope, it is not possible to enforce a design against a domain name or trade name.
The use of designs in social media is limited because the subject of design protection is the appearance of a product, which is not at the forefront of social media usage. The depiction of a design protected product in a social media context may often be of descriptive and thus fair use. However, advertisements for design protected products (or rather fakes) on social media sites can be prevented by means of design law.
Furthermore, designs in Graphic User Interfaces (GUI) can be protected by design laws on designs of monitor surfaces (and not designs of computer programmes because computer programmes miss the element of design). Therefore, images or icons on websites, as a visual result of the creation by computer programmes, can be protected and the unauthorized commercial use of such design-protected images can be prevented. The commercial purpose of websites, blogs or news forums is generally assumed, because they can be used to display advertisements for commercial purposes.
Comparative advertising is generally allowed in Switzerland, unless the comparison is made in a deceptive, degrading, incorrect or unnecessary referencing manner. However, with respect to designs it is important to note that the use of third party IP in comparisons is only allowed to the extent necessary for the comparative purpose. The depiction of a design protected product may often exceed such needs, unless the comparison regards specific design features.
There is no specific parody exception in design law; the principles set out in relation to copyrights and trade marks can be applied in design law too.
An alleged infringer may argue lack of novelty, prior user rights, non-commercial use, exhaustion or the right of joint use in case of use of the design in good faith within the time period between the last day of the deadline for payment of the renewal fees for a further period of protection and the day on which a request for further processing is submitted. In addition, the validity of a design can be challenged based on any of the nullity grounds.
In Switzerland there are no special design law provisions with regard to repair parts. In principle, design protection also extends to repair parts, thus an alleged infringer cannot rely on a repair exception as defence.
Registered designs are deleted by the Swiss Federal Institute of Intellectual Property when they expire, when the designated official fees are not paid, when the right owner explicitly requests the deletion of the design (that is, waives his right), when there is an non-appealable decision declaring the registered design invalid or when the deadline for deferment of publication expires, and the respective reproductions have not been timely submitted to the Swiss Federal Institute of Intellectual Property. The Swiss Design Ordinance provides for a grace period of 6 months for renewal after expiration of the term of protection, that is, the late filing of a request for renewal.
With respect to the time limit for bringing an infringement action and estoppel see 2.3 above in relation of copyrights.
In Switzerland, a design holder can bring a lawsuit claiming design and copyright infringement as well as unfair competition for the same set of facts in the same proceedings. Even though the same set of facts can amount to infringements in design, copyright and unfair competition law, each infringement is approached from the specific point of view.
Product placement is allowed in Switzerland, but some limitations apply with respect to product placement in radio or television programmes. News programmes and programmes on current political events or related to the exercise of political rights in Switzerland may not be sponsored. Furthermore, product placement is not permitted in children's programmes, documentary films and religious broadcasts, unless the sponsor merely provides goods or services of low value and free of charge, such as production aids or prizes, without any additional remuneration.
In the context of radio and television programmes, product placement is subject to certain regulatory requirements.
On the one hand, there is a declaration obligation, which requires a clear reference to the fact that product placement occurs, which is generally necessary at the start and the end of the broadcast and after advertising breaks. In addition, the sponsor must be named at the beginning or end of each programme.
On the other hand, product placement is only permitted if it is integrated in the dramaturgic course of the program. It may neither encourage the conclusion of transactions concerning goods or services of the sponsors or of third parties nor contain statements of an advertising nature concerning such goods and services. A quantitative accumulation of a per se allowed product placement is prohibited, if it gives the overall impression of an illegitimate advertising.
With respect to the type of products, two limitations need to be respected. Alcoholic beverages which fall under the Act on Alcoholic Beverages may neither be shown nor named (for example beer can be used for product placement but not hard alcoholic drinks such as vodka). Likewise, drugs belonging to the supply categories A, B, C and D can neither be shown nor named.
The trade mark owner may request an injunction against an authorised use of its brand, in that, if his brand is used contrary to the agreement. If the broadcaster fails to perform the agreement at all, it can be put in default and the brand owner can continue to request performance or rescind from the contract. In addition, pecuniary remedies, such as damages, satisfaction, and surrender of profits are available.
If the regulatory requirements for product placement are not respected, the supervisory authority can request measures to ensure that no further violations incur and it can impose a fine against the broadcaster.
Legal entities have all the rights and duties of legal persons, except for rights that presuppose intrinsically human attributes, such as gender, age or kinship. Therefore, legal entities have a right of publicity and, to a more limited extent, privacy. It is, however, disputed whether legal entities under public law can also bring a lawsuit based on personality rights.
The corporation must be a legal entity under Swiss law.
Generally speaking, it is possible to include clauses in agreements which aim at protecting the corporate image and reputation of the parties. However, some limitations are imposed by antitrust law and/or unfair competition law to the extent fair competition is distorted.
A prohibition to sell products to certain re-sellers or through a selective distribution system is allowed in the boundaries of the Cartel Act and the Act against Unfair Competition. In particular, vertical agreements can be prohibited according to the Cartel Act if they are apt to significantly distort the market and cannot be justified by efficiency reasons. Purely qualitative selective distribution may be permitted if the selection of the re-sellers is based on objective criteria and such criteria are in relation to the quality requirement of the product.
The Act against Unfair Competition generally protects against unfair competition based on degrading, incorrect or unnecessary referencing statements.
Minimum price restrictions are presumed to eliminate effective competition and, therefore, are prohibited by the Cartel Act. Price guidelines are not prohibited per se but it is to be examined case-specifically as to whether they amount to price-fixing due to additional circumstances. Selling restrictions during certain times can also be relevant from an antitrust point of view, if they significantly restrict competition and cannot be justified on grounds of economic efficiency.
As long as spare parts or components are not protected by any intellectual property right, it is allowable to buy non-original spare parts and components. A contractual restriction to do so may significantly restrict competition and, therefore, violate antitrust law. To the extent such buying restriction is contained in General Terms and Conditions, such a clause would probably be considered unexpected and as a consequence non-enforceable under the applicable principles of contract and unfair competition law.
Liquidated damages clauses are principally allowed if stipulated by contract. However, such damages may not be claimed where the purpose is to reinforce an unlawful or immoral undertaking or, unless otherwise agreed, where performance has been prevented by circumstances beyond the debtor's control.
Furthermore, the court has discretion to reduce such convened penalties if it considers the amount excessive, that is, if there is a flagrant imbalance.
In Switzerland the personality of an individual is protected by law, which includes, for example, the protection of one's name, image, voice and word. The protection of one's image finds its limit if the individual becomes part of the landscape, surrounding or event or appears only indirectly on the image.
The right of protection of personality is mainly regulated in the Civil Code. Other relevant sources are the Code of Obligations, the Federal Act against Unfair Competition, the Copyright Act, the Code of Civil Procedure, the Federal Act on Data Protection and the Victims Assistance Act.
There are no specific conditions; every living person benefits from the right of the legal personality protection.
Generally, the protection of personality rights ceases with the death of the person with the consequence that the individual's identity can be economically used. However, the heirs can rely to a limited extent on their own personality rights protection in relation to reverence of relatives, in order to acquire some protection of the personal rights of the decedents. In contrast, claims involving economic interests can be inherited. A transmissibility mortis causa is however discussed and requested by recent legal literature.
In relation to personality aspects protected by copyright law, protection continues for a certain time after the death of the author (see 2.2 for the specific protection period).
Generally, the legal personality protection right is personal in nature and cannot be assigned. However, a pecuniary claim resulting from violations of the personality rights can be assigned.
Personality rights can be licensed if the licensed personality aspect does not belong to the core area of personal rights and if economic interests prevail. Within these boundaries, even an exclusive license may be granted if in the specific case it does not amount to an excessive commitment.
There are no form requirements as to the license agreement. An assignment of personality right aspects or claims deriving from such rights requires written form.
The rights which shall be the object of the assignment or license should be carefully defined to avoid an overly broad commitment which could be considered excessive and an inclusion of the core personal rights. Ancillary rights, such as the right to claim damages, should be explicitly included to avoid later discussions. In license agreements, the contract period, termination events, and, possibly, a prohibition to assign the contract or any rights thereunder should be stipulated.
License agreements can be terminated at any time for important reasons, namely if it becomes unacceptable and unreasonable for one party to fulfill the contract. License agreements relating to personality rights may be more susceptible to a termination for important reasons, due to the subjective nature of such rights.
The right to protection of one's personality ceases with the person's death. According to the prevailing view, the content of the contract becomes impossible because the right to protection of personality ceases to exist and thus, the contractual relationship ends.
Heirs only have an independent right resulting from their reverence protection; they must be infringed in their personal rights in order to profit from any protection in relation to the deceased person. If the dignity of the deceased person is observed, no problems with the heirs should be encountered. However, with regard to inheritable claims involving an economic interest, the same defences, which can be invoked against the deceased individual (see 4.3 below), are also available with respect to the heirs.
In principle, personality rights cannot be transmitted mortis causa. The copyright provisions, to the extent applicable, remain generally reserved.
Any person violated in this personality rights can sue the infringer. Associations and other organisations of national or regional importance may under certain conditions bring an action in their own name for the violation of the personality of the members of such group.
In case of license agreements, only the exclusive licensee has standing to sue. Where claims arise from assigned rights, the assignee should have the same rights as the assignor, unless the contract limited such rights.
Claims arising from personality rights can be enforced against any unlawful violation, irrespective of any commercial use of it (for instance in relation to violations by the press).
Injunctions are granted regardless of a commercial value of the personality rights at stake. The same applies for a compensation for personal suffering (satisfaction). Contrariwise, damages can only be awarded if an economic impact can be substantiated.
First of all, an alleged infringer can contest the violation or the offensive effect of such alleged violation of personality rights.
Furthermore, an infringer can argue that the allegedly infringed party consented to the infringement. No formalities are required for such consent, but it must be given voluntarily and concretely. The consent must not have been revoked at the time of the infringement and the consent must be permitted (see 4.2).
An infringer can also invoke a private or public interest to justify the infringement of the right of personality. In such case the relevant interests of both parties need to be weighted against each other.
In addition, depending on the requested remedies, further defences may be available. For example, if damages are claimed, the infringer can contest its fault and he may invoke the statute of limitations for pecuniary claims (nonpecuniary claims do not prescribe).
Finally, an infringement may also be justified by law.