Intellectual Property Rights

By the beginning of the 19th century, national regulation of intellectual property existed in countries such as England, France and Prussia. In Switzerland, however, the idea met with opposition from the cantons because trade in unlicensed works with neighboring countries was a profitable business. This stopped in 1883 when the first national copyright legislation was passed.

IPR as per Swiss definition

New technological inventions, memorable trademarks, unique designs, and artistic works all have something in common: They are products of the intellectual effort of their creators. Intellectual property laws were created as a legal framework for protecting extraordinary intellectual achievements from misappropriation.

Reasons for assigning IPR in Switzerland

To maintain peace and order: Together with other aspects of the legal system, legally enforceable property rights help minimize physical violence – and then Associated destruction of economic resources - aimed at securing the control of assets that are sources of economic rewards. This factor clearly applies to all types of property, ‘real’ or ‘intellectual’.

To assign decision rights: Efficient allocation of resources cannot obtain unless someone (individual or collectivity) has the right to decide how economic assets are used. However, the consequences of this principle are rather different depending on whether it is applied to ‘real’ or to ‘intellectual’ property. This is because most forms or real property are seen as private goods while intellectual property is generally thought to a public good. Private goods are characterized by rivalry in usage, i.e. they cannot be used by more than one economic agent at the same time: we cannot both eat the same apple. Because of this, it is generally optimal to let a single agent decide how the good ought to be used. Public goods, on the other hand, are such that usage by one agent does not preclude usage by another:

To reward investment: This factor relates to dynamic efficiency. The idea is simply that no rational economic agent will incur the cost of investing in developing or maintaining property unless she his able to collect some corresponding reward. Hence, if sufficient investment is to be induced, investors must be given property rights over the fruits of their investment so that they can capture a significant proportion of the value that they create.

To favour the diffusion of information: Agents investing in assets might try to exploit them ‘secretly’, expending effort to prevent others from gaining information about the asset.

Copyright

Copyright protects works, i.e., literature and art which have a unique character. This includes literature, music, pictures, sculptures, films, operas..

Scope of protection

Copyright grants the rights holder the exclusive right to decide whether, when and how his/her works may be used, i.e., whether the work may be reproduced, translated, edited, distributed, sold, performed, broadcasted or transferred. The listing in the law is not comprehensive.

Term of protection

In Switzerland copyright protection expires 70 years after the death of the author with the exception of computer programs, the protection of which ends 50 years after the death of the author.

Related rights protection expires 50 years after the performer’s performance,

Patent

A patent is a protective right granted by the federal government for a technical invention. Invention, in the legal sense, is a solution to a technical problem. Inventions include products (e.g., heatable ski boots, or chemical compounds such as aspirin) and processes (e.g., a process for freeze-drying coffee). If an invention is novel, non-obvious to a person skilled in the art and can be commercially applied(useful it is patentable.

Information regarding protection for trademarks and designs can be found on the intellectual property page.

Advantages of patent protection

Owning a patent gives you the exclusive right to prevent others from commercially using your invention for up to 20 years. During this period you can prohibit others from using it - i.e., producing, using, selling or importing - without your permission.

Important Facts regarding patent protection.

Fees for a patent are CHF 200 for filing and CHF 500 for the examination. Five years after the date of filing, yearly renewal fees are CHF 200 for the 7th and 8th year and CHF 310 from the 9th year on (as of 1.7.2008).

The material examination for a patent usually takes place three to four years after a patent has been applied for. An expedited procedure is available for those who wish to have their patent granted more quickly.

The priority deadline begins as of the date of filing. That means you have exactly twelve months to apply for a patent abroad claiming the filing date of the first Swiss application.

Trademarks

Legally, a trademark is a protected sign which is used to distinguish the products or services of one business from another.

Important Facts regarding trademarks

The trademark registration fees in Switzerland are CHF 550, or CHF 350 for electronic registrations using e-trademark, for three classes of goods and services for a period of 10 years.

The 10-year term of protection can be renewed indefinitely.

If there are no apparent problems, a trademark is examined within ten working days.

Counterfeiting and Piracy

Counterfeiting is the infringement of proprietary rights on patents, designs, trademarks, or geographical indications with the intent of imitating the original product.  

Piracy is the unauthorized copying of original works and performances which are protected under copyright or related rights.

Affects of counterfeiting and piracy

 Financial damage

It is estimated that the Swiss economy suffers losses of 2 billion francs annually due to counterfeiting and piracy. Worldwide damages are estimated to be several hundred billions of francs annually..

Loss of jobs

Product piracy destroys jobs, primarily in the countries where the originals are produced. According to a 1998 estimate by the Organization for Economic Cooperation and Development (OECD), counterfeiting and piracy destroyed about 200,000 jobs in Europe and the USA..

Puts consumers at risk

Counterfeited goods are often of inferior quality. Depending on the product, they can also endanger consumer safety and health, in particular with:

Medicines (drugs and products) Mechanical and computer-steered replacement parts (e.g., automobile accessories)

Food items and luxury items

Toys (for example, which have above-average amounts of chemicals)

Perfumes, cosmetics, and bodycare products (can lead to skin irritations)

Partial amendment of the Copyright Act effective 1 July 2008

On-demand right now for performers, producers and broadcasters as well Improved protection for performing artists

Technical measures and rights information

Private use of works

New copyright exceptions and limitations

On-demand right now for performers, producers and broadcasters as well

'On-demand right’ refers to the right of making a work available to the public over a communication network, such as the internet. This right, which until now was granted solely to authors, has now been extended to performing artists, producers and broadcasters. The right allows rights holders to protect themselves against unlawful uses of their creative achievements via a network.

Infringement of the on-demand right can be punished with a custodial sentence of up to five years and a monetary fine of up to CHF 1,080,00.00.

Improved protection for performing artists

Folkloric performances are now protected even when no ‘work’ in the copyright sense is being presented (for example, flag twirling).The performer's moral rights have also been brought closer into alignment with those for authors. They now have the right to claim to be identified as the performer of the performance. Many artists are often involved in a performance (e.g., actors in a film). In case of conflict, all performing artists have needed to file a joint complaint up until now, which made enforcing rights nearly impossible. The new regulation is closer to practice and offers a remedy.

Technical measures and rights information

Technical measures and rights information newly protected

Technological measures are technologies, devices or components designed to prevent users from accessing digital content without authorization or to copy it without permission (e.g., copy protection on audio CD’s). Such technological measures are now protected. Whoever circumvents them — unless it is to serve an authorized use — or assists in circumventing, for instance, by selling "circumvention software", is liable to prosecution.

Rights information is digital information which gives details about the rights holder and the authorized uses. This is also protected and may not be removed or modified.

Technological measures will be monitored

Technological measures are for preventing unauthorized uses — at the same time, they can also prevent lawful uses. For this reason, the application of technological measures will to be monitored. The monitoring office established for this purpose has two goals:

To monitor the effects of technological measures on the exceptions and limitations to copyrights, i.e., on the legal applications for users, such as the use of a work in a school classroom.

To promote a partnership solution between users/consumer groups and those who employ technological measures.

Private use of works

Whoever downloads digital content, such as an online technical journal, is generally creating a copy for private use. However, making a copy is only limitedly permissible outside of the personal sphere. The new paragraph 3bis of Article 19 of the Copyright Act enables institutions of education, businesses, public administration, libraries, etc., to use digital content without coming into conflict with the requirements for private use.Copying for private use is permitted, but only if an appropriate remuneration is paid (e.g., blank recording media levy). The new legislation assures that e-commerce consumers are not unjustifiably charged double or even multiple levies.

New copyright exceptions and limitations

The Copyright Act permits a series of uses of protected works which are in the public interest (e.g., the use of content by handicapped persons or in schools and businesses) or it stipulates that exercising certain rights must be under collective rights management. Such statutory licenses, respectively, compulsory collective management, are referred to as “limitations and exceptions to copyright”.

The partial amendment revises the regulation of exceptions and limitations and with that, is adapted to technological developments:

Broadcasters play an important role as intermediaries of works. The partial amendment enables them to make their archives as well as current broadcasts available over the internet in the general interest of access to culture. Significant rights needed for doing so are now under compulsory collective management. Broadcasters no longer need to negotiate with each right holder individually, which lowers costs, they can also publish broadcasts even if the rights owner is unknown or his whereabouts unknown.

Publicly accessible archives, such as museums or libraries, also make an important contribution to the accessibility of culture. They too may apply to the collecting societies when the rights holder is unknown or his whereabouts are unknown when using their archives. The new regulation for archival copies also takes into account that digital media is clearly less durable than conventional media such as books. Archives may now create not just one, but all copies needed to preserve the archive and, with that, better meet their mandate to preserve and make culture accessible.

Copyright allows the reproduction of protected works only with the permission of the rights holder. This approach is no longer appropriate for a digital environment where copying is oftentimes incidental and has no independent significance. Such copies are now allowed. This greatly reduces the liability risk for internet service providers and assures a functioning communication environment. This exception is considered so important that the EU Infosoc Directive (copyright in the information society) declares it compulsory.

Handicapped people depend on works being made available to them in a form they can perceive (e.g. books on tape for blind people). In practice, requests to rights holders for permission to produce their works in a perceivable form remain, unfortunately, often unanswered. The law now allows copies to be made specifically for people with handicaps — in return for remuneration to the rights holder.

Competition Laws

What is Competition Laws and why they are necessary?

Competition law, known in the Swiss as antitrust law, has three main elements:

Prohibiting agreements or practices that restrict free trading and competition between business entities. This includes in particular the repression of cartels.

Banning abusive behavior by a firm dominating a market, or anti-competitive practices that tend to lead to such a dominant position. Practices controlled in this way may include predatory pricing, tying, price gouging, refusal to deal, and many others.

Supervising the mergers and acquisitions of large corporations, including some joint ventures. Transactions that are considered to threaten the competitive process can be prohibited altogether, or approved subject to "remedies" such as an obligation to divest part of the merged business or to offer licenses or access to facilities to enable other businesses to continue competing.

The substance and practice of competition law varies from jurisdiction to jurisdiction. Protecting the interests of consumers (consumer welfare) and ensuring that entrepreneurs have an opportunity to compete in the market economy are often treated as important objectives. Competition law is closely connected with law on deregulation of access to markets, state aids and subsidies, the privatization of state owned assets and the establishment of independent sector regulators. In recent decades, competition law has been viewed as a way to provide better public services. The two largest and most influential systems of competition regulation are United States antitrust law and European Community competition law. National and regional competition authorities across the world have formed international support and enforcement networks.

Switzerland is neither a member of the European Union (EU) nor a member of the European Economic Area (EEA). Switzerland therefore occupies a somewhat unique position in the middle of Europe as far as competition law enforcement is concerned.

The law governing competition matters in Switzerland is the Federal Act on Cartels and Other Restraints

of Competition of 6 October 1995 (the "Competition Act"). On June 20, 2003, the Swiss Parliament adopted an in-depth revision of the Competition Act. The purpose of this last revision was to update and further adapt Swiss competition legislation to EU competition law. It marked a new phase in Swiss anti-trust enforcement. This revision entered into force on April 1, 2004.

The Swiss Competition Commission is empowered to impose direct fines in relation to hard-core horizontal and vertical agreements and abuse of dominant positions. Furthermore, in an effort to eliminate cartels, a leniency program has been included in the Competition Act. On March 12, 2004, in connection with this revision, the Swiss Government also adopted an Ordinance on Sanctions in case of Unlawful Restraints of Competition (the "Ordinance on Sanctions"), which also entered into force on April 1, 2004.

COMPETITION ACT IN SWITZERLAND

A person impeded by an unlawful restraint of competition from entering or competing in a market may request:

• Removal or cessation of the restraint;

• Damages and reparations;

• Remittance of the illicitly earned profits.

RESTRICTION OF COMPETETION LAWS IN SWITZERLAND

Territories: Agreements between competitors to allocate markets geographically are presumed to suppress effective competition in the relevant market and hence be unlawful.

Customers: Agreements between competitors to allocate markets according to trading partners are presumed to suppress effective competition in the relevant market and hence be unlawful.

Customer groups: Agreements between competitors to allocate markets according to trading partners are presumed to suppress effective competition in the relevant market and hence be unlawful.

CASES OF BREACH IN PAST YEARS IN SWITZERLAND