Intellectual Property Rights

Trademark Law

Intellectual property rights are legal rights that provide protection for original works, inventions, or the appearance of products, artistic works, scientific developments.

Below are the summary of four types of IP rights: Trademarks, Patents, Copyrights, and design.

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Trademark

Brand protection is about names and logos with which goods and services can be provided.
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Patent

Patent protection is the protection of inventions, inventions are things that significantly improve a product or manufacturing process.
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Design Protection

Design is protection for the external appearance of a product. Copyright is a right of the author to works of literature and art.
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Copyright

Copyright is created automatically and does not have to be specially protected.
To explain intellectual property law or industrial property rights, the example of a passer-by walking in front of a shop window is often given.

For example, he sees a chair with a special, previously unknown design. Although he cannot take this chair with him, he has perceived something new by seeing the design and has gained a new insight.

The intellectual property or industrial property rights protect these new “ideas”, which are not immediately available as a physical product, but nevertheless represent a value or a good. It is similar to the example with the shop window with patents.

If someone learns of the patent processes then they can do the same. He learned something new from it. The patent or the brand or the copyright and / or the design protects this novelty and makes this novelty commercially marketable for the owner only through exclusive use.

Trademark

A trademark is a label that is used to distinguish the services or goods of one company from those of other companies. Brands are a distinguishing feature for a company’s services.

The trademark protection gives the trademark owner the exclusive right to mark his brands or goods or services and to use them with this mark. This right can also be licensed or given to others.

Others can be excluded from using the mark. All combinations of different characters and numbers, which are then words, slogans, letter combinations and number combinations and pictorial representations as so-called image brands or logos as well as all kinds of combinations of the various elements can be protected as trademarks.

Depending on the trademark register, there are also several other categories that can be protected as trademarks, for example the 3-D trademark acoustic signs, odor marks, color marks or other rather unusual types.

Trademarks always refer to a certain goods or service area (called Nice class) and to a certain geographic region (country). For example, if a trademark is registered in Switzerland, then the trademark protection also applies to Switzerland. With the so-called Madrid system, it is possible to expand a Swiss brand to any number of countries.

When registering a trademark, the Trademark Office only checks the general registrability (so-called Absolute Refusal such as lack of distinctive character).

It is not checked whether other existing older trademark rights are being infringed. If other trademark rights are infringed, this can have corresponding consequences.

The trademark applicant should absolutely make sure that he/she does not violate any earlier rights in order to avoid having to pay damages.

A brand becomes particularly strong when the brand is very different from the other brands. For a strong brand, fantasy words or the transfer of a word to another arbitrary area are suitable.

The pure category designation or descriptive facts are not suitable for a brand name. For example, “confectioner” is not a suitable trademark for bakers or baked goods (while the trademark would be registrable in a completely different area).

Pure descriptions do not differ from the other products and therefore cannot be registered as a trademark.

Normally, the mere use of a mark alone cannot be used to derive a claim to this mark. Only the registration with the IPI Trademark Office permits the exclusive use of a trademark. The term of protection is ten years and can be extended as often as you like.

The trademark owner can prevent the misuse of his trademark after registration. The owner of a trademark is also entitled to all rights arising from this trademark, for example, a domain name (domain dispute procedure for trademark owners).

The brand owner can prevent the misuse of his brand name as a domain and block this domain or have it transferred to him in a suppressed manner.

A brand owner can also, for example, with the help of customs, prevent products under his brand name from reaching Switzerland or exclude others from misusing his brand on Ricardo, Digitec, Brack, eBay, Amazon, or Google.

The brand must also not be misused on social media such as Facebook, Instagram, Twitter, or Youtube. This is usually only possible with a registered trademark, we will help you with the registration and enforcement of your rights as a trademark owner.

Patent

The patent allows the owner to exclude third parties from the commercial use of his invention. The holder of a patent is free to transfer or license the patent to others and thus commercialize and benefit from his work.

The patent standing relay makes relatively high demands on its registration. For example, ideas, theories, procedures and other things that are difficult to grasp are not among the animal wars. An invention must meet the following criteria to be patented:

  • First, the invention must be new and must go beyond the state of the art and need not be known to the public
  • Second, the invention must have and be commercially useful
  • Thirdly, the invention must not arise in an obvious manner from the prior art, but must contain something new

Inventions can be protected for a maximum of 20 years, after which the patent expires. Annual fees must be paid for the patent from the fourth year after deregistration.

As with trademarks, the patent office does not check whether the invention is really new and whether all protection requirements are met. It is therefore advisable to research the patent beforehand.

If the requirements for registration are not met, it is possible that the patent will be registered but the patent cannot be enforced accordingly.

Just like the trademark, the patent also has a geographical scope of protection. It must be protected for the respective countries.

Design

A design is the external design of products. The design can be two- or three-dimensional. When it comes to design, one spontaneously thinks of furniture, fabric samples, lamps or furnishings, but it can also be, for example, the groove pattern of a profile on a car tire.

Things that have a purely technical use cannot be protected by a design. This can be, for example, parts within a machine that are required in this form for the function and that cannot be protected by a design.

The term of protection of a design can be a maximum of 25 years, with five periods that offer protection for five years and must be paid for separately.

The protection requirements for a design are that the design is new and no similar or identical design has been published before. The design must differ from existing designs in essential points.

Copyright protects the author of works of literature and art. The way in which an idea is expressed is protected. However, the idea itself or the concept cannot be protected.

Copyright protection only relates to the content itself and not to the form. For example, If a new production process is described in a book, then only the exact wording and the exact sentence structures of the book are protected.

The general idea, i.e. the new production process, is not protected by this. The reader can gain knowledge from the description of the book and use this knowledge for himself.

But he is not allowed to copy exactly the respective lines of the book and use them differently. The general idea or knowledge is not protected by copyright, but only the exact form, here in the case of the book in the form of letters and chapters.

In contrast to the other intangible goods such as the design of the brand and the patent, no registration is required for copyright. The author of a text automatically receives the appropriate copyright with the writing. The author alone can determine whether and how his work may be used.

In particular he has the following rights:

The right of reproduction

The right to reproduce the work by any process and to produce further copies of his work.
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The right of distribution

The right to sell one’s work or to otherwise bring it into circulation.
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The right to make his work accessible

This means the right to make the work publicly accessible in a communication network or something similar such as the Internet.

The performance and presentation rights

That means the right to present one’s work in public.
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The editing right

That means deciding whether his work may be changed or whether a new work may act on it (this typically also includes translations, for example).
Protected by copyright are literary works such as novels, scientific essays or websites on the internet, visual or, apart from audio, visual works such as photography and films, works of music and other acoustic works, works of visual art, i.e. painting, sculpture and graphics, as well as art and utensils.

As already mentioned, protection or copyright arises automatically with the creation of a work, no further formalities are required to obtain protection and no registers are kept. In Switzerland, copyright lasts for over 70 years and for computer programs over 50 years after the death of an author.

For photographs without an individual character, protection ends 50 years after production. If the protection relates to 70 years after the death of the author, the protection can last for a very long time if the author is still alive because it extends up to 70 years after his death.

If an author designs a work at the age of 20 and turns 100, protection lasts for up to 70 years after his death, for a total of 150 years.

Collecting societies exercise the rights of the authors collectively and pay out any bonuses to them.

Procedure to protect intellectual property

In most cases it makes sense if you want to approve a trademark or a patent or a design in several countries that you approve the trademark or the patent or the design in one country and then expand the protection accordingly.

There are various international agreements that simplify enlargement. The agreements include the international Madrid or Bern agreements (in some cases TRIPS agreements are also being implemented).

This agreement greatly simplifies the respective approval in the desired countries. Simplification includes, for example, recognition of usage (as in the USA), the ability to communicate in one language and without local translations and the elimination of the need for a local domicile address.

A property right strategy should be developed to determine exactly what I need to protect and where.

The protection strategy should clarify:

  • If protection is necessary at all, third parties threaten to restrict my rights
    Which protection is best what exactly do I have to protect (trademarks vs. patents or designs)
  • What are the alternatives (e.g. publication of the invention instead of a patent)
  • How far does the protection have to extend for which goods or services do I have to acquire protection and which Nice classes should be protected
  • In which countries do I need protection
    Which logos, slogans, products, services, brands, or umbrella brands should be registered as trademarks
  • How do I monitor my intellectual property (monitoring of new registrations at the trademark office, Internet monitoring, cooperation with customs)
  • How do I proceed against copycats, what is my trademark or patent protection strategy

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