Designs are governed by the Federal Act on the Protection of Designs (also called the Designs Act) of 5 October 2001 (revised 1 July 2023), and its implementation Ordinance (Designs Ordinance) of 2002 (revised 1 January 2022).

Switzerland is a contracting party to a number of international treaties concerning designs:

• The Paris Convention for the Protection of Industrial Property of 20 March 1883.
• The Hague Agreement of 1925 concerning the International Registration of Industrial Designs (1960 and 1999 Acts).
• The Locarno Agreement of 1968 amended in 1979, establishing an International Classification for Industrial Designs.

The hierarchy of legal texts in Switzerland is as follows:

1. Federal Swiss Constitution.
2. International treaties. 
3. National laws.
4. National ordinances.

Design registration may be considered for a wide range of luxury products. Article 1 of the Designs Act protects “the design of products or parts of products that is characterised, in particular, by the arrangement of lines, surfaces, contours or colours or by the materials used”. In other words, all visible portions of a product deserve protection. 

Only registered designs can claim protection under the Designs Act. There is, however, no material examination of the design applications, which are registrable as soon as they meet all formal requirements. 

The validity of a registration can only be contested in front of a civil judge, for one of the reasons mentioned in Article 2: namely, lack of novelty and/or individual character. In that case, the applicable standards are the “specialised circles” known to be referring to professionals or specialists of the business field. 

The conditions for legal protection are, as per usual standards, for the design to be new and bear individual character (Article 2, paragraph 1). These conditions can be described negatively as follows:

• A design is not new if an identical design which could be known to the specialised circles in the relevant sector in Switzerland has been made available to the public prior to the filing date or the priority date (Article 2, paragraph 2).
• A design does not have individual character if the overall impression it produces differs only in immaterial features from a design that could be known to the specialised circles in the relevant sector in Switzerland (Article 2, paragraph 3).

Article 4 of the Designs Act furthermore excludes from protection designs that are dictated solely by the technical function of the product. This provision leads to most of the case law decisions in design matters in Switzerland, where rather strict conditions are applied. Also excluded from design protection in the same article are the appearances of products that are contrary to public policy or morality.

Registered designs are valid for five years from the date of filing and can be renewed for five-year periods, up to a maximum of 25 years.

Article 7 of the Designs Act states that the right in the registered design shall belong to the designer. Where several persons have jointly created a design, the right in the registered design shall belong to them jointly. 

When a design is created by an employee in the execution of their duties or following instructions given by their employer, the right in the registered design shall belong to the employer, unless otherwise provided by contract (Article 332, Swiss Code of Obligations).

Designs created by consultants, agencies, shareholders, directors or suppliers need to be contractually assigned to the applicant. The usual rules of contract law apply to design assignment, the written form being required for validity.

A main component of the enforceability of designs in Switzerland is the quality of the registration. While the Designs Act provides for traditional enforcement possibilities against any design leading to a similar overall impression (Article 8), successful enforcement depends on the essential features deriving from the views (representations) of the protected object, and the precision of the design elements for which protection is sought. With regard to the subject matter of “a similar overall impression”, the Swiss Federal Supreme Court held that similarity has to be assessed based on a trademark approach, meaning that for an infringement to be approved, the distinctive elements which can be easily remembered by the relevant consumer circles must be present in the infringing object.

Hence, Swiss designs are enforceable (Article 9) against unauthorised commercial uses by third parties, in particular against the manufacturing, storing, offering, placing on the market, importing, exporting and carrying in transit of a product in which the design is incorporated or to which it is applied, or storing such a product for these purposes. Import, export and transit of commercially manufactured goods may even be prohibited when used for private purposes, or against third parties encouraging or facilitating such unlawful uses.

Swiss case law on design enforcement is rather scarce and not very predictable; it therefore highly depends on the nature of the case and the quality of the design registration which it is proposed to enforce. Luxury brands therefore often prefer to rely on other IP rights such as two- and tri-dimensional marks for patterns and shapes, when sufficiently distinctive, or even authors’ rights and unfair competition provisions. 

Swiss trademark law is regulated by the Federal Act on the Protection of Trade Marks and Indications of Source of 28 August 1992 (revised 1 July 2023), also called the Trade Mark Protection Act (TmPA). The TmPA is implemented by the Federal Ordinance on the Protection of Trade Marks and Indications of Source (TmPO) and is based on the principles of the Federal Act on Administrative Procedure (APA). 

Besides its national law, Switzerland is a party to a number of international treaties regulating trademark principles, namely:

• The Paris Convention for the Protection of Industrial Property of 20 March 1883.
• The Madrid Agreement of 14 April 1891 and Madrid Protocol of 27 June 1989 regarding the International Registration of Marks.
• The Nice Agreement of 15 June 1957 concerning the International Classification of Goods and Services.
• The Marrakech Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) of 15 April 1994.

As Switzerland is a civil law country, case law is not considered to be binding, but in the absence of clear legal interpretation or the absence of legal provisions, decisions of the Swiss Supreme Court (BGer/TF) are considered to be applicable precedents. 

Swiss law tends to be Euro-compatible across as many areas as possible, but the national case law, while trying to remain close to its neighbouring countries, is often based on national principles. Particularly with regard to well-known and famous trademarks, it should be pointed out that the Swiss Supreme Court held in a landmark decision (cf. “Chanel IV” decision 4C.354/1999 of 12.01.2000) that the function of a trademark is only to act as a “badge of origin”. This means that contrary to the jurisprudence of the European Court of Justice, Swiss trademark law does not protect other functions of a trademark such as that of guaranteeing the quality of a product or service or that of communication, investment or advertising (cf. ECJ’s “Interflora” decision c-323/09 of 22.09.2011).  Another "Swiss speciality" is the right of continued use of a registered trademark pursuant to Article 14 TmPA: The owner of a registered trademark cannot prevent a third party from using a trademark if the “alleged infringer” has used the identical sign before the registration. 

Use is not considered to be a source of trademark rights, which are formally acquired only through registration. Some defensive rights may, however, be granted to unregistered marks, specifically:

• Notorious registered abroad, based on Article 6bis of the Paris Union Convention, (exception to the principle of territoriality of trademark rights).
• Famous trademarks beyond the registered classes according to Article 15 of the TmPA, (exception to the principle of specialty). 

These concepts will be developed below.

In terms of enforcement possibilities, Article 3 of the TmPA states that:

“1./ Also excluded from trade mark protection are signs that are:

a. identical to an earlier trade mark and are intended for the same goods or services;

b. identical to an earlier trade mark and intended for similar goods or services such that a likelihood of confusion results.

c. similar to an earlier trade mark and intended for the same or similar goods or services such that a likelihood of confusion results.

2./ An earlier trade mark is:

a. a filed or registered trade mark that gives rise to a right of priority under this Act (Art. 6-8).

b. a trade mark that is well known in Switzerland within the meaning of Article 6bis of the Paris Convention for the Protection of Industrial Property of 20 March 1883 (Paris Convention)4 at the time of filing the sign referred to in paragraph 1.

3./ The grounds for refusal under this Article may only be invoked by the proprietor of the earlier trade mark.”

According to paragraph 2b of this provision, well-known trademarks benefit from a theoretical protection even if not registered, provided: 

1. they are well-known;
2. they are well-known specifically in Switzerland; and
3. they were well-known before the application date of the opposed mark. 

If these conditions are fulfilled, the owner of the well-known mark can file for opposition or an infringement action on the basis of the sole use and notoriety of their mark. In practice, however, these cases are extremely rare, essentially because the recognition of the well-known character requires evidence of the notorious character of the sign, the threshold of which is very high in Switzerland. In fact, the notoriety of a trademark was never approved in an opposition proceeding. It has been evaluated by the doctrine, based on the existing case law, that the degree of notoriety among the general public, and not only the potential customers for the goods/services at stake, should reach a level as high as 75% in order for the well-known character to be accepted. The Swiss Supreme Court held in its “Tripp Trapp” decision (decision 130 III 267 of 20.01.2004) that it should be, as a guideline, above 50%.

In addition, the validity of the evidence submitted is very often questioned in practice, with the following conclusions having led to negative decisions:

• evidence of use and notoriety in other countries — even the European Union — is not relevant;
• subjective evidence, such as Affidavits and/or Declarations under Oath, is not sufficient if not backed up by objective evidence;
• evidence of greater use and notoriety pertaining to other brand elements — even in the same family of marks — than the brand portion on which the risk of confusion shall be recognised will be discarded; and
• the notoriety level resulting from the use evidence should be obvious and recognisable through objective statements (ideally, of third parties).

In conclusion, to ensure a well-known character is conferred to a non-registered mark, it is preferable to conduct a survey among Swiss consumers. The questions enclosed in the survey should, however, be carefully drafted by a Swiss attorney and the polling agency used. 

In general, the TmPA recognises the same enforceability to all marks, including well-known marks. 

There are, however, two specific cases in Swiss practice where famous brands may benefit from their well-known character to ensure better enforceability:

Enhanced scope of protection

When examining the risk of confusion in a trademark opposition, one criterion covers the scope of protection of the opposition mark: the practice recognised on several occasions that established and well-known marks benefit from a broader scope of protection. Again, the well-known character must be demonstrated objectively in order for the scope of protection to be broadened. If recognised, the risk of confusion is more likely to be acknowledged as well, but the Examiner will take into account all elements of the case, including the similarity of the goods/services and of the signs.

Famous trademarks

Article 15, paragraph 1 of the TmPA protects famous trademarks beyond the goods/services they are registered for, by stating that “the proprietor of a famous trade mark may prohibit others from using his trade mark for any type of goods or services if such use threatens the distinctiveness of the trade mark or exploits or damages its reputation”.

This provision, however, can only be activated in front of a civil judge, and not in the case of an opposition, as it defeats the principle of specialty, prevailing in the appreciation of a risk of confusion in front of the IP Institute. 

Experience has demonstrated that, while the famous character of a brand still has to be shown in order to fulfil the threat to a brand’s distinctiveness or reputation, civil judges tend to acknowledge the famous character of a brand more generously than the IP Institute recognises a well-known character. Whether the reputation or distinctiveness of the famous brand is then damaged, however, is then examined on a case-by-case basis and cannot easily be predicted. To give some examples of famous trademarks, the Swiss Federal Supreme Court declared the following trademarks as being famous in Switzerland: “Vogue”, “Bugatti”, “Chanel”, “Nike”, “Elle”, “Gucci” and “Nestlé”.

In all other instances, the reputation of a trademark does not create any specific advantage for enforcement actions. This is especially relevant in unfair competition cases where a high reputation of the infringed brand is not sufficient to stop third party free-riding, and a risk of confusion is actually required to recognise a behaviour as unlawful. Relying solely on unfair competition provisions is therefore rarely successful in Switzerland. 

Another important element to remember is that any trademark to be enforced based on the TmPA, if older than five years, will be submitted to use requirements. The threshold for use evidence to be considered as being relevant is also very high in such cases and has to respond to the following strict criteria: 

• Use must happen through the owner or an authorised third party.
• Evidence must reflect the trademark as registered and the goods/services as registered.
• Use must have taken place in Switzerland exclusively; use abroad is not relevant.
• Use must be sufficiently significant to respond to a certain demand on the marketplace; reputation of a brand does compensate for low sales volumes or sporadic use of the mark.

Many brand owners tend to forget to isolate evidence of use for the Swiss market only, instead producing evidence for the entire EU market, which the Swiss authorities do not consider to be relevant. 

The Swiss Federal Act on Copyright and Related Rights of 9 October 1992 was revised on 1 July 2023 to increase the protection measures against violations of rights on the internet and to include computer software in the explicit list of protectable artworks. 

In addition to its national law, Switzerland is a party to the following international treaties:

• The Berne Convention for the Protection of Literary and Artistic Works of 9 September 1886.
• The Geneva Universal Copyright Convention of 6 September 1952.
• The Geneva WIPO Copyright Treaty of 20 December 1996.

The hierarchy of sources of law is as stated above in Section 1.

The Swiss Copyright Act does not require registration to recognise the validity of a copyright. The author’s rights are protected for any intellectual creation resulting in an artwork and presenting an individual character. Besides literature and musical artworks, Article 2 of the Copyright Act also cites paintings, photographs, sculptures, scientific art pieces (plans, maps, etc.), architectural pieces, cinematic productions and choreographies as non-exhaustive examples of artworks protected under the Act. 

In order to benefit from a copyright protection, the artwork needs to present some individuality. This concept is not similar to the originality required in other countries, as the Swiss Supreme Court recently specified in its Feuerring-barbecue decision (decisions 4A_472/2021 and 4A_482/2021 of 7 June 2022) that the creative nature of an artwork can notably be perceived through a certain “surprise effect”. The Supreme Court reiterated that “originality” in the sense of the author’s personal imprint is not required to consider a creation protectable under the Copyright Act. The individuality of the artwork is determinative (and not the individuality of the author). 

Once their work is protectable under the Copyright Act, authors are entitled to the exclusive use and integrity of their personal creation. This includes patrimonial rights such as the right to distribute, reproduce and exhibit their works to the public (Article 10, paragraph 2) as well as the right to bring alterations of the original work (Article 11). These provisions include any presentation of the work to the public in non-material form, i.e. on the internet or other digital broadcasting means. 

For most works, the author’s rights remain valid for 70 years following the author’s death, with an exception for software and AI-generated pictures/works, which remain valid for 50 years after their creation. Unless the contrary is proven, a presumption of ownership of the copyright goes to the person whose name is stipulated on the artwork or under whose name it is disclosed to the public (Article 8, Copyright Act). Joint ownership is also possible, according to Article 7 of the Copyright Act, when they have jointly created the work. In this case, the right ends at the latest 70 years after the last author’s death. 

Swiss copyright legislation is very business-friendly and, unlike in other European jurisdictions, copyrights can be easily assigned by way of an oral or written agreement. However, the employment and copyright legislation lacks a provision pursuant to which copyrights automatically vest in the employer (Article 332 of the Swiss Code of Obligations only states that “inventions and designs” shall be the employer’s property). The Copyright Act (Article 17) only provides for regulation with regard to software developments of employees: according to this provision, “the employer alone shall be entitled to exercise the exclusive rights of use”. 

A first step in Swiss enforcement of copyrights is to confirm that the creation subject to violation is deemed protection as an artwork under the definition of Article 2 of the Copyright Act. Any court competent to judge on a copyright matter will first need to confirm the existence of a copyright. 

As there is no registration system enabling proof of ownership of the creation, when such ownership is contested, the owner will be required to bring evidence about the origin and creation process of the artwork. Such evidence can take several forms, but — as with all other IP rights enforcement actions— needs to bear some objectivity. It is therefore highly recommended for authors and designers to document the main steps of their creation process, through photographs (dated precisely) or traditional mail posted to oneself (it is recommended that any mail presented also includes saved envelopes with clear dates and content indications). Blockchain time-stamping solutions should also allow such objectivity to be brought, provided the certificate presents clear date/time information and the time-stamping solution does not belong to the copyright owner. When an assignment of the copyright’s commercial rights was carried out, the date of the agreement may serve as evidence; when there is a time gap between the creation of the artwork and its assignment to a third party, it is recommended that evidence of the creation process is added as an appendix to the agreement, especially when the enforcement rights were also transferred. 

When assessing whether two artworks are similar, courts will assess whether the infringing object conveys the same overall impression. Most cases of copyright infringement in Switzerland concern design furniture and the courts approved a copyright infringement in case “the original shine[s] through” the copy (Commercial Court St. Gallen, 2000, Tripp Trapp v. Hauck).

A recent decision of the Swiss Supreme Court (decision 4A_171/2023 of 19 January 2024 — A. v. Rolex) declared that customisation of third-party branded goods, in that case of Rolex watches, for the exclusive and private use of the individual owning the original product and upon specific order of the owner was not to be considered as trademark infringement, and provided the business model did not include the commercialisation of customised series, could be seen as tailored art services. Such customisation could, provided the level of individual character and intellectual creation is sufficient, also lead to the creation of a copyright in favour of the author of the customisation. As such business models may pick up in the future with the upcycling of luxury goods (bags, clothing, …), brand owners may need to pay specific attention to the sustainability chains of their exclusive products. Offering recycling and/or upcycling solutions of their own could be a way to better (if not fully) gain control over the lifecycle of their products. 

Trade dress is not recognised as a standalone right under Swiss law. Trade dress elements therefore need to be identified as separate IP rights under either design, trademark or copyright provisions, which has some implication in terms of IP strategy. Registration of a trade dress can potentially be achieved by design or trademark, however, rarely as a whole. The main features of a packaging or a product need to be captured individually, and enforced in combination with one another. 

Enforcement actions are very often based on a combination of a registered right together with unfair competition provisions, which means they are traditionally brought in front of civil courts. Famous brands may have an advantage in this field as civil courts are examining cases considering all (factual and legal) arguments and where notoriety is more easily admitted based on contextual arguments. The practice is, however, generally strict and rarely recognises a confusing similarity between packaging (for example, the High Court of Aargau decision of 03. 11.2008 Knorr/Bon Chef). Successful cases often depend on the notoriety of a product, as was the case in the Swiss Supreme Court decision 4A_587/2021 of 30.08.2022 in the Lindt & Sprüngli vs. Lidl “Gold Bunny” case. 

This is not linked to IP in Switzerland.

Switzerland does not have a specific piece of legislation designed to protect trade secrets. Trade secrets are protected by the Swiss Federal Act against Unfair Competition (revised on 1 September 2023). The applicable provision (Article 6) states: “A person acts unfairly in particular if they exploit or disclose to others manufacturing or trade secrets that they have found out or otherwise unlawfully obtained.”

In addition, the Swiss Criminal Code forbids the misuse of trade secrets. Specifically, Article 162 of the Swiss Criminal Code states:

“Any person who betrays a manufacturing or trade secret that he is under a statutory or contractual duty contract not to reveal, any person who exploits for himself or another such a betrayal, shall be liable on complaint to a custodial sentence not exceeding three years or to a monetary penalty.”

There is no specific legislation on this in Switzerland.

On 1 January 2017, revised regulations on indications of origin and particularly the term “Swiss” and the Swiss cross (a white cross on a red background) came into force (so-called “Swissness legislation”). The Swissness legislation intends to strengthen the protection of the designation “Switzerland” and the Swiss cross. It provides clear rules for the use of Swiss indications of source for advertising purposes with the intention of preventing misuse of the Swiss brand and thus maintaining its value in the long term.