Intellectual Property
In general
I. The Law
a) Until the beginning of the 1990s, Swiss law operated under old legislation, except in the area of patent inventions. The LBI (RSDF 232.14 : systematic compilation of Swiss Federal statutes and decrees) originates from the 24th June 1954 and was revised to include the European Patent Convention (CBE ; RSDF 0.232.142.2) and the Patent Cooperation Treaty (TCB or PCT ; RSDF 0.232.141.1). The law governing the protection of trademarks, indications of source and industrial compensation dated back to the 16th of September, 1890. The law on designs and industrial models dated back to the 30th March, 1900 and the law on copyright can be traced back to the 7th December, 1922 ! A new law against unfair competition (LCD ; RSDF 241) entered into force on the 1st of March, 1988. Switzerland’s desire to avail itself of modern legislation in harmony with European Union law triggered a drafting process for other new laws to come into force once Switzerland became a member of the EEA, the European Economic Area.
On the 1st of March, 1993, the new Federal law on the protection of trademarks and indications of source (LPM ; RSDF 232.11) came into force. On the 1st of July of the same year, this law was followed by the entry into force of the law on copyright and neighbouring rights (LDA ; RSDF 231.1). Despite the fact that the Swiss people and the Swiss cantons rejected membership of the EEA on the 6th of December, 1992, Parliament continued its work and adopted a law on the protection of designs (LDes ; RSDF 232.12), which entered into force on the 1st of July, 2002.
b) Swiss legislation (in the broad sense of the term, ie the constitution, international treaties, laws, ordinances and decrees) is published in all three official languages; German, French and Italian. This legislation is available via the internet site of the "Federal Authorities of the Swiss Confederation" with an official record of the Federal Laws in chronological order, ROLF, (http://www.admin.ch) and a systematic record of Federal law, which is especially useful (in order of subject, RSDF, http://www.admin.ch).
c) The motives for legislation are either drafted in the Federal Council (the Federal Government) or in one of the two chambers of the Federal Parliament. These motives are published in the Feuille fédérale ; they may also be downloaded from the internet (http://www.admin.ch).
II. Case Law
d) In its original version, article 122 of the Federal constitution of the 18th December 1998, which came into force on the 1st of January 2000, replacing the 1874 constitution, provided that :
"1 Civil Law legislation falls under the jurisdiction of the Swiss Confederation.
2 The organisation of judicial bodies, the procedure and administration of justice relative to civil law falls under the jurisdiction of the cantons."
On the 12th of March, 2000, the Swiss people and the cantons voted in a modification of this text which has since appeared as follows :
"1 Civil Law legislation and civil legal proceedings fall under the jurisdiction of the Swiss Confederation.
2 The organisation of judicial bodies, the procedure and administration of justice relative to civil law falls under the jurisdiction of the cantons, unless provided for otherwise by the law."
The fundamental difference between these two texts is the shift of jurisdiction for civil proceedings from the cantons to the Swiss Confederation. Nevertheless, given the current absence of a federal law for civil proceedings, which is still being developed, the new constitutional provision is not yet applicable. Thus, for the moment and for the next few years, each canton will apply its own civil procedure.
e) However, the new constitutional text does give the cantons jurisdiction over the organisation of their judicial system. The various systems are quite different. Geneva, for example has preserved the system dating back to the French occupation (1798-1813), ie the principle of double jurisdiction (Tribunal of First Instance and Court of Appeal). However, based on the principle of derogation in federal law, the federal laws of intellectual property, the LDA, the LPM, the LDes and the LBI, provide that "each canton is to establish one single court for its territory, responsible for civil cases”. This implies that cases based on these laws are decided by one single cantonal jurisdiction. Appeal to the Federal Court (Supreme Court) are governed by the Federal Law on the Federal Court of the 17th of June 2005 (LTF ; RSDF 173.110). Those few cantons which have a Commercial Court have given it this jurisdiction and most of the other cantons have attributed jurisdiction to the "Canton Court" or, in the case of double jurisdiction, to the Court of Appeal.
Canton legislation is available on the Institute of Federalism website of the University of Freiburg : http://www.federalism.ch or on http://www.weblaw.ch.
Federal law does not require a single canton jurisdiction, provided that the request is based on a law not mentioned in the previous paragraph. In this way, a case based on the LCD, on article 29 of the Civil Code of the 10th of December, 1907 (protection of name : RSDF 210) or on article 956 of the Code of Obligations of the 30th of March, 1911 (protection of business names : RSDF 220) may be brought before the original jurisdiction in accordance with the applicable canton law. If the case is based on both a law mentioned in the previous paragraph, for example the LPM, and also on a law in the present paragraph, for example the LCD, canton law, in general, provides for the presumption that the federal law takes precedence. In the absence of this provision, the principle is upheld by the following Federal Court ruling :
"(…) a special jurisdiction established (…) by federal law (the sole jurisdiction for intellectual property), (…) cannot refuse to examine other points of federal law invoked at the same time as the law which creates its special jurisdiction."
The principle governing the application of federal law automatically prohibits dual legal proceedings and favours precedence of the application of federal law, the proceedings of which are decided by the legislation or case law.” (ATF (Federal Supreme Court Rulings) 92/1966 II 305 c. 5 SHEILA).
f) Until 1996, federal and cantonal case law on intellectual property and unfair competition was published, when available, by the “Revue suisse de la propriété intellectuelle” (RSPI) (The Swiss Review on Intellectual Property). Since 1997, this case law has been available, together with academic articles in the “Revue du droit de la propriété intellectuelle de l'information et de la concurrence” (RPIIC) (The Review of Intellectual Property Law on Information and Competition). Summaries of case law articles which have appeared in the RPIIC are accessible on the following website http://www.sic-online.ch.
Since the creation of a federal court in 1874, certain decisions have been published in the official record of the Federal Court decisions (ATF) in the language in which they were handed down. A private publication, le Journal des tribunaux, has translated these decisions into French. All the decisions from the federal court from the 01.01.2000 and those which merit attention are available on the Federal Court site : http://www.bger.ch under "Case Law" and "Decisions from 2000". These appear, as mentioned, in the original language.
In some cantons magazines exist, often of a private nature, devoted to case law and doctrine, for example la Semaine judiciaire in Geneva. Increasingly, canton case law is available on the internet. The links are available on the following site : http://www.weblaw.ch.
III. The administrative authorities
g) Commensurate with the federal law of the 24th of March, 1995 on the status and the responsibilities of the Federal Institute of Intellectual Property (IFPI) and article 29, paragraph 1 of the ordinance of the 17th of November, 1999 on the organisation of the Federal Department of Justice and Police, the IFPI is the competent authority for the Confederation for all issues related to intangible assets. This institution is autonomous, enshrined in public law and has legal status : http://www.ige.ch.
The IFPI is particularly active in registration of trademarks, patents and designs and is the first instance to rule on cases of opposition to registration of trademarks.
Registration of intellectual property, including the registration of trademarks, patents and designs is available on the following website : http://www.swissreg.ch.
h) An IFPI decision may form the subject of an appeal to the Administrative Federal Court (AFC). In the case of an opposition lodged against the registration of a trademark, the AFC’s decision is final. There is no appeals procedure via the Federal Court.
i) In order to be afforded legal protection, a company’s objects clause must feature in the Trade Registry and be published in the “Feuille officielle suisse du commerce” (FOSC) (Official Swiss Trade newsletter).
The web site of the Federal Office of the Trade Registry (http://zefix.admin.ch) has a central index of all company names, a search engine and a direct link to the canton register. In approximately one third of all cantons, including Geneva, an electronic excerpt of the registered entries can be downloaded free-of-charge. In the remaining cantons, this can be obtained via the internet but there is a small fee payable by credit card.
j) Both registered trademarks and company names are published in the FOSC, which is also available via the internet : https://www.shab.ch.
k) Protecting manufacturing and trade secrets is not technically part of intellectual property law ; however these secrets, often related to intellectual assets, are protected by other regulations (the Criminal Code, Banking Law, Unfair Competition Law, the Code of Obligations). Our law firm takes a special interest in manufacturing and trade secrets, as they are so often closely related to the intellectual property rights of our clients.