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  瑞士商标网>>国际商标法规>>瑞士商标法
瑞士商标法

Chapter 1 General

Part 1 Protection of Trademarks

1. Definition

(1) A trademark is a sign capable of distinguishing the goods or services of one enterprise from those of other enterprises.

(2) Trademarks may consist, in particular, of words, letters, numerals, graphic representations, three-dimensional shapes or combinations of such elements with each other or with colors.

2. Absolute Grounds for Exclusion

Trademark protection shall not be available to:

(a) signs that belong to the public domain, except where they have become accepted as a trademark for the goods or services for which they are claimed;
(b) shapes that constitute the nature of the goods themselves or shapes of the goods or of their packaging that are technically necessary;
(c) misleading signs;
(d) signs contrary to public policy, morality or applicable law.

3. Relative Grounds for Exclusion

(1) Trademark protection shall also not be available to signs:

(a) identical with an earlier trademark and intended for the same goods or services as such trademark;
(b) identical with an earlier trademark and intended for similar goods or services and a risk of confusion results therefrom;
(c) similar to an earlier trademark and intended for the same or similar goods or services and a risk of confusion results therefrom.

(2) Earlier trademarks shall mean:

(a) filed or registered trademarks that enjoy priority under this Law (Articles 6 to 8);
(b) trademarks that are well known in Switzerland within the meaning of Article 6bis of the Paris Convention for the Protection of Industrial Property, of March 20, 1883 (Paris Convention), at the time of filing of the sign referred to in paragraph (1).

(3) The grounds for exclusion under this Article may only be invoked by the owner of the earlier trademark.

4. Registration in the Name of Authorized Users

Protection shall also not be available to trademarks registered in the name of agents, representatives or other authorized users without the consent of the owner or which remain entered in the Register after withdrawal of consent.

Part 2 Generation of Trademark Rights; Priority

5. Generation of Trademark Rights

Trademark rights shall be generated on entry in the Register.

6. Priority of Filing

The trademark rights shall belong to the person who first filed the trademark.

7. Priority Under the Paris Convention

(1) Where a trademark has been duly filed for the first time in another member State of the Paris Convention, or with effect for such State, the applicant or his successor in title may claim the date of first filing for an application for the same mark in Switzerland, on condition that the application is filed in Switzerland within six months of the first filing.

(2) A first filing in a State that affords reciprocity to Switzerland shall have the same effect as a first filing in a member State of the Paris Convention.

8. Exhibition Priority

Any person who exhibits goods or services identified by a trademark at an official or officially recognized international exhibition within the meaning of the Convention on International Exhibitions of November 22, 1928, in a member State of the Paris Convention, may claim for the application the date of the opening day of the exhibition on condition that he files the trademark within six months of that date.

9. Priority Declaration

(1) Any person claiming priority under the Paris Convention or exhibition priority shall file with the application a priority declaration and submit evidence of priority.

(2) The claim shall lapse if the time limits and formal requirements laid down in the Ordinance are not complied with.

(3) Entry of priority shall simply constitute a presumption in favor of the owner of the trademark.

Part 3 Subsistence of Rights

10. Term of Validity and Extension of Registration

(1) Registration shall be valid for 10 years as from the filing date.

(2) The registration shall be extended for further ten-year periods if a request is submitted and the fees laid down in the schedule have been paid.

(3) The request for extension must be filed with the Federal Institute of Intellectual Property (Federal Institute) within the last 12 months preceding expiry of the term of validity, but within six months, at the latest, after expiry.

(4) [Repealed]

11. Use of Trademark

(1) A trademark shall enjoy protection if it is used in connection with the goods and services for which it is claimed.

(2) Use in a form that differs only insignificantly from the registration and use for export shall also constitute use of a trademark.

(3) Use of the trademark with the consent of the owner shall be deemed use by the owner himself.

12. Consequences of Non-Use

(1) If the owner has failed to use the trademark in connection with the goods or services for which it has been claimed for an uninterrupted period of five years following expiry without opposition of the time limit for opposition or following termination of opposition proceedings, he may no longer assert his rights in the trademark, unless there exist important reasons for his failure to use.

(2) If use of the trademark occurs for the first time or is resumed after more than five years, the rights in the trademark shall be restored with effect from the original priority date, unless non-use of the trademark in accordance with paragraph (1) has been invoked prior to the time of first or resumed use.

(3) Any person who invokes non-use of a trademark shall be required to substantiate his claim; evidence of use shall then be required of the owner of the trademark.

Part 4 Content of Rights in Trademarks
13. Exclusive Rights

(1) The trademark right shall afford its owner the exclusive right to use it to identify the goods or services for which it is claimed and to dispose thereof.

(2) The owner of a trademark may prohibit others from using a sign that is excluded from protection under Article 3(1); in particular from:

(a) affixing the sign to goods or their packaging;
(b) offering the goods, putting them on the market or stocking them for such purposes under the sign;
(c) offering or supplying services under the sign;
(d) importing or exporting goods under the sign;
(e) using the signs on business papers, in advertising or otherwise in the course of trade.

(3) These rights may also be asserted by the owner against authorized users under Article 4.

14. Limitation with Respect to Previously Used Signs

(1) The owner of a trademark may not prohibit another person from continuing to use, to the same extent as hitherto, a sign that such person had already used prior to the filing of the application.

(2) This right of continued use may only be transferred together with the enterprise.

15. Trademarks of Wide Repute

(1) The owner of a trademark of wide repute may prohibit others from using his trademark for any type of goods or services if such use would jeopardize the distinctiveness of the trademark or would exploit or damage its reputation.

(2) Rights obtained before the trademark acquired its reputation shall remain unaffected.

16. Reproduction of Trademarks in Dictionaries and Other Reference Works

Where a registered trademark is reproduced in a dictionary, other reference work or in a similar work without mention of the fact that it is registered, the owner of the trademark may require from the publisher, editor or distributor of the work that a corresponding note be included, at the latest, in a reprint.

Part 5 Changes to Trademark Rights

17. Transfer

(1) The owner may transfer his trademark in whole or in part for the goods or services for which it has been registered.

(2) The transfer shall only be valid if evidenced in writing. It shall be invokable against third parties acting in good faith only if it is entered in the Register.

(3) Proceedings may be instituted under this Law against the previous owner up to the time the transfer is entered in the Register.

(4) Unless otherwise agreed, transfer of an enterprise shall also imply transfer of its trademarks.

18. Licensing

(1) The owner of a trademark may permit others to use his trademark for the goods or services for which it is registered, in whole or in part, for the whole territory or a part only of Switzerland.

(2) The license shall be entered in the Register at the request of one of the parties. The license then has effect against a subsequently acquired right in the trademark.

19. Usufruct and Pledges; Execution

(1) A trademark may be subject to usufruct, pledge or compulsory execution.

(2) Usufruct and pledges shall have effect against third parties acting in good faith only if they are entered in the Register.

Part 6 International Treaties

20. International Treaties

(1) International treaties shall remain unaffected.

(2) Where international treaties binding on Switzerland afford more extensive rights than this Law, such rights shall also apply to Swiss nationals.

Chapter 2 Guarantee Marks and Collective Marks

21. Guarantee Marks

(1) A guarantee mark is a sign that is used by several enterprises under the control of the owner of the mark and which serves to guarantee the quality, geographical origin, type of manufacture or other characteristics common to goods or services of such enterprises.

(2) A guarantee mark may not be used for goods or services of the owner of the mark or of an enterprise with which he has close economic connections.

(3) The owner of the guarantee mark must permit any person to use it, in return for suitable remuneration, for goods or services that possess the common characteristics guaranteed under the regulations for the mark.

22. Collective Marks

A collective mark is a sign of an association of manufacturing, trading or service enterprises that serves to distinguish the goods or services of the members of the association from those of other enterprises.

23. Regulations

(1) The applicant for a guarantee or collective mark must file with the Federal Institute regulations on the use of the mark.

(2) The regulations for guarantee marks shall designate the common characteristics of the goods or services which the mark is intended to guarantee; they shall further provide for effective control over the use of the mark and for appropriate penalties.

(3) The regulations for collective marks shall designate those enterprises that are entitled to use the mark.

(4) The regulations may not be contrary to public policy, morality or applicable law.

24. Approval of Regulations

The regulations must be approved by the Federal Institute. Approval shall be given if the requirements of Article 23 are satisfied.

25. Unlawful Regulations

Where the regulations do not satisfy or no longer satisfy the requirements of Article 23 and the owner of the mark does not remedy the situation within a time limit to be laid down by the court, the registration of the mark shall be cancelled on expiry of that time limit.

26. Use Contrary to Regulations

If the owner of the mark tolerates a repeated use of the guarantee or collective mark that infringes essential provisions of the regulations and if he does not remedy that situation within a time limit to be laid down by the court, the registration of the mark shall be cancelled on expiry of that time limit.

27. Transfer and Licensing

The transfer of a guarantee or collective mark or the grant of licenses with respect to collective marks shall be valid only if entered in the Register.

Chapter 3 Registration of Trademarks

Part 1 Registration Procedure

28. Filing

(1) Any person may file a trademark.

(2) The application filed with the Federal Institute shall comprise:

(a) a request for registration, stating the name or trade name of the applicant;
(b) a reproduction of the trademark;
(c) a list of the goods or services for which the trademark is intended.

(3) The fees prescribed in the schedule shall be payable for each filing.

(4) [Repealed]

29. Filing Date

(1) An application for a trademark shall be deemed to have been filed once the documents referred to in Article 28(2) have been submitted.

(2) If a trademark is replaced or essential parts thereof are changed or if the list of goods and services is extended subsequent to filing, the day on which those changes were submitted shall be deemed the filing date.

30. Decision and Registration

(1) The Federal Institute shall not accept the request for registration if the filing does not satisfy the requirements of Article 28(2).

(2) It shall reject the request for registration if:

(a) the filing does not satisfy the formal requirements laid down in this Law or in the Ordinance;
(b) the prescribed fees have not been paid;
(c) absolute grounds for refusal subsist;
(d) the guarantee or collective mark does not satisfy the requirements of Articles 21 to 23.

(3) It shall register the trademark if no grounds for rejection subsist.

Part 2 Opposition Procedure

31. Opposition

(1) The owner of an earlier trademark may lodge opposition to a registration on the basis of Article 3(1).

(2) Opposition shall be lodged in writing with the Federal Institute within three months of publication of the registration. The opposition fee shall also be paid within that time limit.

32. Justification of Use

If the defendant claims non-use of the earlier mark under Article 12(1), the opposer shall be required to prove the use of his mark or provide important reasons for non-use.

33. Decision on Opposition

If opposition is justified, the registration shall be cancelled in whole or in part; if such is not the case, the opposition shall be rejected.

34. Costs

In its decision on the opposition the Federal Institute shall stipulate whether and to what extent the costs of the successful party are to be borne by the losing party.

Part 3 Cancellation of Registration

35. Cancellation of Registration

The Federal Institute shall cancel a trademark registration, in whole or in part, if:

(a) the owner requests cancellation;
(b) the registration has not been extended;
(c) the registration has been annulled by a final court decision.

Part 4 Appeals to the Appeal Board

36. Appeals to the Appeal Board

(1) Decisions of the Federal Institute in trademark matters may be contested by an appeal to the Appeal Board for Intellectual Property.

(2) The same appeal shall be available with regard to decisions of the Federal Institute of the Trade Register regarding the acceptability of a company designation or of the name of an association or a foundation.

(3) The decision of the Appeals Board in opposition proceedings (Articles 31 et seq.) shall be final.

Part 5 Register, Publications

37. Keeping of Register

The Federal Institute shall keep the Trademark Register.

38. Publications

(1) The Federal Institute shall publish:

(a) the registration of trademarks (Article 30(3));
(b) the extension of trademark registrations (Article 10(2));
(c) the revocation of trademark registrations (Article 33);
(d) the cancellation of trademark registrations (Article 35).

(2) The Federal Council shall determine which further entries are to be published.

(3) It shall determine the organ of publication.

39. Access to Register; Inspection of Files

(1) Any person may inspect the Register, obtain information on its contents and request extracts.

(2) Any person shall also be entitled to inspect the file of registered trademarks.

(3) The Federal Council shall determine those cases in which files may be inspected prior to registration.

40. Searches [Repealed]

Part 6 Continued Procedure on Non-Compliance With Time Limits

41. Continued Procedure on Non-Compliance With Time Limits

(1) If the Federal Institute rejects a petition in trademark matters for the reason that a time limit has not been respected, the petitioner may request in writing that the procedure be continued. Article 24(1) of the Law on Administrative Procedure shall remain unaffected.

(2) The request must be submitted within two months of the petitioner having had knowledge of failure to comply with the time limit, but within six months of expiry of the time limit not complied with, at the latest; in addition, the act not carried out must have been effected in its entirety and the fees prescribed in the schedule have been paid.

(3) Where the request is accepted, the situation will be restored that would have existed had the act been carried out in good time.

(4) Continued procedure shall not be possible in the event of failure to comply with:

(a) the time limit for filing the request for continued procedure (paragraph (2));
(b) the time limit for claiming priority under Artides 7 and 8;
(c) the time limit for filing opposition under Article 31(2).

Part 7 Representation

42. Representation

(1) Any person participating in an administrative or court proceeding under this Law, and who has neither domicile nor headquarters in Switzerland, shall be required to appoint a representative established in Switzerland.

(2) The provisions on professional representation in proceedings shall remain of application.

Part 8 Fees

43. Fees

(1) In addition to the cases referred to in this Law, fees shall be paid for official acts carried out in response to a specific request.

(2) [Repealed]

Chapter 4 International Registration of Trademarks

44. Applicable Law

(1) This Chapter shall apply to international registrations under the Madrid Agreement Concerning the International Registration of Marks of April 14, 1891 (Madrid Agreement), effected through the intermediary of the Federal Institute or which have effect for Switzerland.

(2) The other provisions of this Law shall apply where not otherwise stipulated by the Madrid Agreement or by this Title.

45. Applications for Registration in the International Register

(1) There may be effected, through the intermediary of the Federal Institute:

(a) the international registration of a mark if Switzerland is the country of origin within the meaning of Article 1(3) of the Madrid Agreement;
(b) modification of an international registration where Switzerland is the country of the owner of the mark within the meaning of the Madrid Agreement.

(2) The fees prescribed in the Madrid Agreement and in the schedule shall be payable for the international registration of a trademark.

46. Effect of International Registration in Switzerland

(1) An international registration for which protection is requested in Switzerland shall have the same effect as a filing with the Federal Institute and entry in the Swiss Register.

(2) Such effect shall be deemed not to have begun if and to the extent protection of the internationally registered mark is refused for Switzerland.

 
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