Intellectual property rights

IP protection for software

Which intellectual property rights are available to protect software, and how do you obtain those rights?

Software is automatically protected under copyright law in Switzerland if and to the extent it constitutes a copyrightable work (ie, if it is an intellectual creation with individual character). Thus, there is no need for the author of software to register the software or apply for protection to obtain copyright. In addition, patent protection is in principle also available for computer-implemented inventions where the necessary requirements are met. In any case, the abstract algorithm and basic idea underlying a computer software cannot be monopolised by copyright or patent protection.

IP developed by employees and contractors

Who owns new intellectual property developed by an employee during the course of employment? Do the same rules apply to new intellectual property developed by contractors or consultants?

Ownership belongs to the employer by way of statutory law where an employee, in performing work for the employer and complying with their duties under the employment contract, creates an invention or a design or computer software. Beyond that, the employer and the employee may agree for additional intellectual property rights to transfer to the employer by way of contract. In practice, it is advisable for an employment contract to specifically address the transfer of intellectual property created by the employee in the context of the employment relationship to the employer. There are no express corresponding rules applicable to third-party contractors and consultants, such that the ownership of the intellectual property created by such third parties would have to be determined in view of the specific circumstances. Thus, in practice, it is advisable to put in place a clear contractual arrangement.

Joint ownership

Are there any restrictions on a joint owner of intellectual property’s right to use, license, charge or assign its right in intellectual property?

Joint ownership is frequently discussed in contract negotiations, but most often not an ideal solution given that Switzerland, like many other jurisdictions, lacks explicit rules governing joint ownership of intellectual property. Thus, whenever that is contemplated, it is advisable to agree on joint ownership only based on a clear contractual basis governing each joint owner's right to use, license, charge or assign the relevant intellectual property or the ownership interest of such joint owner.

Trade secrets

How are trade secrets protected? Are trade secrets kept confidential during court proceedings?

Trade secrets are protected under various statutory laws, including employment law, unfair competition law and criminal law. The relevant provisions limit the unlawful disclosure and exploitation of trade secrets. In addition, contractual confidentiality agreements serve to protect the confidentiality of trade secrets. In court proceedings, the court may upon request of a party impose measures to protect the confidentiality of trade secrets disclosed during the proceedings.

Branding

What intellectual property rights are available to protect branding and how do you obtain those rights? How can fintech businesses ensure they do not infringe existing brands?

Trademark protection is available to protect branding. To obtain trademark protection, the relevant designation – for example, a word or logo, or a combination – must be filed as trademark application to the Swiss Federal Institute of Intellectual Property. In addition to trademark protection, brands may also be protected under unfair competition law, which prohibits certain deceptive practices in commerce. It is advisable to conduct a proper search prior to adopting a brand to minimise the risk of infringing pre-existing trademark rights.

Remedies for infringement of IP

What remedies are available to individuals or companies whose intellectual property rights have been infringed?

In general, civil law remedies and criminal law remedies may be available to individuals or companies whose intellectual property rights have been infringed. Civil law remedies include actions to cease and desist from the infringing activities, compensation of damage and surrender of profits. In addition, infringements of intellectual property rights generally also constitute criminal offences, such that an individual or company whose intellectual property rights have been infringed may also file criminal complaints.