In Switzerland, according to WIPO’s (World Intellectual Property Organization) statistics, intellectual property is protected in the most reliable way.
Switzerland is one of the first countries in the world to raise the issue of intellectual property protection. Since 1888, the Federal Institute of Intellectual Property (IGE, www.ige.ch) has been operating in the Swiss Confederation, being in charge of the registration of intellectual property rights in Switzerland.
In Switzerland, intellectual property rights are divided into two groups: copyright and exclusive rights to the results of intellectual activity in the economy (i.e., industrial property). This division is due to the fact that copyright has several tangible restrictions in their protection and, unlike the exclusive rights to the results of intellectual activity in the economy, they cannot be entered into any register.
Jost & Partners Swiss law firm helps you understand the Swiss system of intellectual property protection and, in accordance with your needs, will provide services related to:
- registration of the brand and trademark;
- receiving preferential tax treatment IP Box;
- using “Swissness” label (type of indication on the product stating its belonging to Switzerland, for example, “Swiss made”, “Swiss quality”)
- registration of a patent for an invention;
- registration of industrial design;
- protection of personal data;
- copyright protection.
The specialists of Jost & Partners Swiss law firm solve the clients’ problems falling within the sphere of protection of intellectual property, in combination with other aspects, such as inheritance issues, tax burden and relations with the Swiss fiscal authorities, possible claims from third parties, the structure of intellectual property ownership, possibility of its assessment and transfer to third parties.
Switzerland is one of the first countries in the world to raise the issue of copyright protection.
1738: the first copyright publication in Switzerland.
1835: the first Copyright Act passed in Switzerland (in canton of Ticino).
1883: the first federal copyright law in Switzerland.
1886: the Berne Convention for the Protection of Literary and Artistic Works is signed in Bern.
Copyright protection is based on the provisions of the Federal Law No. 231.1 “On Copyright” dated October 9, 1992, protecting the so-called “Works”, i.e. individual intellectual property rights related to literature and art in the broadest sense of the word. Moreso, the law regulates the protection of related rights, which cover the rights of practicing artists to their events (performances), the rights of authors of audio and video works to their products (CDs, DVDs, etc.), as well as the rights of radio and television broadcasters to their radio and television broadcasts.
Copyright law provides the copyright owner with the exclusive authority to determine where, when and how its Work may be used. The term “use” includes the following actions: publishing, republishing, disclosure, broadcast, translation, remastering, revision, distribution, sale, construction and transmission. In addition, Law No. 231.1 defines the deadlines for copyright protection. As a general rule, copyright protection is guaranteed for 70 years. Protection of rights to computer programs is to be carried out up to 50 years after the death of the creator.
Copyright is protected by the aforementioned law since its inception. The protection does not need to be formalized and, accordingly, there is no copyright register in Switzerland.
That is why many well-known “ARTWORK COPYRIGHT HOLDERS” from around the world (artists, writers, musicians, composers, performers, software developers, etc.) register specialized legal entities in Switzerland, transferring thereto the rights to their WORKS, in order to protect their copyrights, both during the author’s life’s journey and for author’s descendants.
The main regulatory document governing patent law is Federal Law on Patents No. 232.14 dated June 25, 1954.
This law defines an invention as a “solution to a technical problem”, and a patent as a “protective certificate of an invention recognized by the state” stimulating scientific and technological progress and innovation in the economy. The description of the invention must be formulated laconically and as precisely as possible. It must reflect the general information about the invention.
On the one hand, thanks to the patenting procedure, the copyright holder receives up to 20 years of exclusive use of such invention. During this period, the copyright holder can prohibit anyone from the following: using such invention, producing, applying, selling or putting it into commission. On the other hand, under certain circumstances, the copyright holder may be forced to issue a limited patent right through the courts.
Brand and Trademark
According to Swiss law, a brand and a trademark in the legal sense mean a protected mark of distinction for companies to designate their goods or services, distinguishing it from other similar products. These designation marks may be represented in any graphic way: a word, a combination of several letters, combinations of numbers, an artistic interpretation of the above (i.e., logo), as well as various geometric shapes, etc.
Descriptive advertising words and slogans, as well as common designations, may not be registered as a brand or trademark. It must be noted that the right to a brand and a trademark must apply only to the goods indicated in the registration certificate. The main piece of legislation governing the protection of brand and trademark rights in the Swiss Confederation is Federal Trademark Law No. 232.11 “On the Protection of Trademarks and Indications of Source” dated August 28, 1992.
The declared brand or trademark are then to be checked and entered into the register within ten days after payment of the fee. The maximum period for a check for identification uniqueness has been established – it is six months from the date of payment of the fee.
When registering, a procedure of checking a brand or trademark with IGE is not a check for uniqueness, but only for compliance with legal requirements. In Switzerland, the Institute of Patent Agents is in charge of the matters of verification for identification uniqueness. Protection of a brand or a trademark must be provided for a period of 10 years, then it may be extended (for a 10-year term at a time) indefinitely.
Industrial design right
Protection of the right to industrial design is carried out on the basis of Federal Designs Law No. 232.12 “On the Protection of Designs” dated October 5, 2001. The law describes the term of industrial design as a design that has three dimensions, as well as characteristic shapes, lines, contours, colors, surfaces, materials that distinguish it from other homogeneous objects. An industrial design may be legally protected if it is unique and one of a kind.
Registration of industrial design rights is similar to registration of rights to a brand and a trademark. Protection of industrial design rights is to be considered valid from the moment of its registration in the relevant register and shall last 5 years. This period may be extended up to four 5-year intervals. Thus, the maximum protection period may be 25 years.
The right to personal data protection
The legislation of the Swiss Confederation includes rights to the protection of personal data in the group of intellectual property rights. Moreso, lawmakers proceed from the fact that personal data is a high-value product that may be used by third parties in order to reduce marketing costs and generate additional profit.
The main sources of data protection law in the Swiss Confederation are: Art. 13 of the Federal Constitution, stating that everyone shall have the right to demand the inviolability of their private and family life, written and telegraphic correspondence, telephone conversations, and also they shall have the right to protect their personal data. For the legislative consolidation of said rights, the Federal Law On Data Protection (Datenschutzgesetz) No. 235.1 dated June 19, 1992 was adopted. The Law no. 235.1 establishes the right to receive reference information about one’s own personal data. Namely, each person (either individual or legal entity) shall have the right to find out what data has been stored about such person and, if necessary, request deleting or amending thereof. The reasoning for the request to delete or amend the data is optional. This principle allows for civil control over the storage of personal data in the Swiss Confederation. At the same time, the law emphasizes that a person must take the initiative in such matters, i.e. the data collector is not to be held obliged to give any feedback. In order to avoid ignoring or obstructing requests by data collectors, the legal period for issuing a certificate of collected personal data is up to 30 days. This is usually done free of charge, but in some cases there may be a charge, its maximum amount being set by law as not more than 300 Swiss francs. The law also defines the cases prohibiting deletion of personal information at the request of the applicant. In such cases, the data collector (either individual, company or executive body) must be held obliged to provide a written reasoned refusal.
Protection of Geographical Names and Places of Origin
Protection of geographic names and places of origin is based on sui generis law and does not require any registration. It is regulated by the provisions of the Federal Trademark Protection Law No. 232.11 “on the Protection of Trade Marks and Indications of Source” dated August 28, 1992. Special Federal Decree No. SR 916.140 dated November 14, 2007 regulates protection of the rights of wine producers and wine merchants. The Federal Office for Agriculture (BLW, www.blw.admin.ch) maintains a list of wine names by their origin. In the same way, protection of rights to new plant varieties, regulated by the norms of the federal law No. 232.16 “On Protection Of Plant Varieties” dated March 20, 1975, is to be carried out.
« Swissness » / «Swiss Made»
A separate section of Swiss intellectual property right law is protection of public designations regulated by the norms of three federal laws: No. 232.21 “On the Protection of the Swiss Coat of Arms and Other Public Insignia” dated June 5, 1931, No. 232.22 “On the protection of image and the name of the Red Cross” dated March 25, 1954, and No. 232.23 “On the protection of the names and insignia of the United Nations and other intergovernmental organizations” dated December 15, 1961.
According to Law No. 232.21, all goods and services of Swiss origin are to be considered of ultimate economic value. They must have a special reputation at home and abroad, based on exclusivity, time-tested traditions and high quality. Such reputation shall represent a definite competitive advantage, targeting such products / services as ones of the highest price segment of the market. Alas, the advantage and success of the « Swissness » label have led to numerous cases of misuse of Swiss insignia.
« Swissness » covers everything related to Switzerland, including:
- «Made in Switzerland»
- Swiss recipe
- «Swiss Quality»
- Matternhorn (mountain),
- Swiss cross and flag.
Unlike the Swiss flag, the Swiss coat of arms may not be used by private entities. It may only be used by the army and government agencies.
In order to use the indication of the country of origin (as a publicity stunt) and position your services as Swiss, in some cases it is enough that the company is managed from Switzerland.
The place of management of the company is where the company operates and where decisions are made with a direct impact on the services offered.
Subsidiaries of a Swiss company, as well as its foreign branches may also enjoy the benefits of Swiss authority in the following cases:
- The parent company is located in Switzerland.
- The subsidiary is managed from Switzerland (via a parent company or director from Switzerland).
- The subsidiary and the parent company offer similar (not necessarily identical) services.
The above requirements are sufficient for the services to be considered “Swiss made”. The situation with food products is much more complicated. For most types of food, there are additional stringent rules. The butcher’s meat, for example, may only be considered “Swiss made” if the livestock was kept in Switzerland. Dairy or milk-containing products are to be considered “Swiss made” if 100% of the milk used is Swiss made. In case of water, it must be from a Swiss source.
In other words, the foodstuffs labeled with « Swissness » label are de facto Swiss made.
For industrial products, there are other rules: 60% of the cost of their production must come from Switzerland.
No registration is required to enjoy advantages of « Swissness » label. However, if a disputable situation arises or someone complains about the “Swiss made” quality, the question arises whether such company may even call its products / services “Swiss made”.
The consequences of misuse of « Swissness » label are most severe.
If the company misleads the buyer (even if it only indirectly hints that the product is Swiss made), then it must fall under both administrative and criminal liability.
The case may be initiated:
- by deceived customers;
- by Swiss consumer protection organization;
- by Swiss Committee for the Protection of Intellectual Property (on behalf of Switzerland as an offended country).
Misuse of « Swissness » label is punishable by up to 5 years in prison and a fine of up to CHF 1,080,000. As a general rule, the offending party must pay not only the fine, but also the costs of all lawyers and government agencies in such case.
A lot of companies are trying to gain access to « Swissness » through participation in large Swiss associations. The annual fee for participation in Swiss associations starts from 400-500 Swiss francs. Anybody’s profile will look high-status with a “honorary member of the Swiss association of the best watchmakers” (for example). But for top-tier Swiss associations, it is important that their members are exclusively Swiss companies.
Intellectual Property Box (IP Box)
IP-Box is a preferential tax treatment allowing to pay taxes on intellectual property at a reduced rate.
IP Boxes are not something very novel and innovative. Many jurisdictions had offered IP Boxes (preferential tax treatment). But the keyword here is in its past tense – with the adoption of the BEPS Plan, such opportunities have run dry. At the moment, it is possible to obtain tax preferences for intellectual property (IP Boxes) solely in Switzerland.
How that works.
Few are aware that Switzerland is a negotiated tax country. Switzerland has a three-tier tax system. Taxes are to be paid at the federal, cantonal and community levels. Tax rates for the federal level are fixed, but tax rates at the cantonal and communal level depend on the decision of the canton and the community authorities.
This approach does not contradict the BEPS Plan and allows maintaining the IP Box tax treatment.