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Rights and protection
Is ownership of a trademark in your jurisdiction determined on a first-to-file or first-to-use basis?
Trademark ownership is determined on a first-to-file basis.
What legal protections are available to unregistered trademarks?
Unregistered trademarks cannot be enforced in Switzerland, except for well-known trademarks within the meaning of Article 6bis of the Paris Convention for the Protection of Industrial Property. In addition, a person using an unregistered trademark is entitled to a prior use defence with regard to a later trademark registration (Article 14 of the Federal Act on the Protection of Trademarks and Indications of Source (the Trademark Protection Act)). Further, unregistered signs may be protected under other legislation, such as company name, copyright and unfair competition legislation or the laws on the protection of geographical indications.
How are rights in unregistered marks established?
Rights in unregistered trademarks must be proven in administrative or civil proceedings.
Are any special rights and protections afforded to owners of well-known and famous marks?
A well-known trademark within the meaning of Article 6bis of the Paris Convention is protected in Switzerland without being registered.
Under Article 15 of the Trademark Protection Act, a famous trademark enjoys a broader scope of protection, which encompasses all goods and services. Further, a famous trademark’s reputation is protected against being unfairly taken advantage of and detrimental acts.
To what extent are foreign trademark registrations recognised in your jurisdiction?
Foreign trademark registrations are not recognised in Switzerland, provided that a well-known trademark within the meaning of Article 6bis of the Paris Convention is recognised.
What legal rights and protections are accorded to registered trademarks?
A trademark owner is the only party entitled to:
- use the trademark in relation to the products and services for which it is registered; and
- dispose of the trademark.
A registered trademark is protected against the creation of a likelihood of confusion in business (including advertisements, offerings, sales, imports, exports and transit). In addition, the import, export and transit of products bearing a confusingly similar sign for private purposes is prohibited.
Who may register trademarks?
Any natural or legal person can own a trademark in Switzerland.
What marks are registrable (including any non-traditional marks)?
Any sign which is graphically represented can be registered as a trademark, including
- combinations of letters;
- graphic images (eg, logos);
- three-dimensional forms (eg, the Mercedes star);
- slogans (eg, "Nespresso, what else");
- position marks; and
- any combination of the aforementioned elements.
Other distinguishing signs, such as musical jingles (eg, that of Coca Cola), moving images and holograms can also be registered as trademarks. As of 2017, registered designations of origin and geographical indications may be registered as geographical marks (eg, VALAIS RACLETTE for cheese).
Can a mark acquire distinctiveness through use?
Yes, a sign in the public domain can acquire distinctiveness through use, unless it is a sign which must remain in the public domain (eg, basic shapes and single letters).
On what grounds will a mark be refused registration (ie, absolute and relative grounds)?
Under Article 2 of the Trademark Protection Act, protection is excluded for the following signs (absolute grounds):
- signs that are in the public domain, except for signs that have acquired a secondary meaning;
- shapes that constitute the nature of the goods themselves or shapes that are technically necessary;
- misleading signs and signs contrary to public policy, morality or applicable law.
Further, under Article 3(1) of the act, signs that create a likelihood of confusion are excluded from trademark protection (relative grounds).
Are collective and certification marks registrable? If so, under what conditions?
Yes, collective and certification trademarks are registrable in Switzerland. The applicant of such a trademark must file regulations governing the use of the trademark with the Federal Institute of Intellectual Property.
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