232.11
English is not an official language of the Swiss Confederation. This translation isprovided for information purposes only and has no legal force.

Federal Act
on the Protection of Trade Marks and Indications of Source(Trade Mark Protection Act, TmPA)of 28 August 1992 (Status as of 1 January 2017)

The Federal Assembly of the Swiss Confederation,on the basis of Article 122 of the Federal Constitution1,2
and having considered the Dispatch of the Federal Council
dated 21 November 19903,
decrees:

Title 1
Chapter 1
Section 1

Trade Marks
General Provisions
Trade Mark Protection

Art. 1

Definition

1 A trade mark is a sign capable of distinguishing the goods or services of one undertak-ing from those of other undertakings.

2 Trade marks may, in particular, be words, letters, numerals, figurative represen-tations, three-dimensional shapes or combinations of such elements with each otheror with colours.
Art. 2Absolute grounds for refusal

Excluded from trade mark protection are:a.

signs that are in the public domain, except where they have become established as a trade mark through use for the goods or services for which they
are being claimed.

b.

shapes that constitute the nature of the goods themselves or shapes of thegoods or their packaging that are technically necessary.

c.

misleading signs;

AS 1993 274
1
SR 101
2
Amended by No I of the Federal Act of 21 June 2013, in force since 1 Jan. 2017
(AS 2015 3631; BBl 2009 8533).
3
BBl 1991 I 1

1

232.11d.

Industrial Property

signs contrary to public policy, morality or applicable law.

Art. 3

Relative grounds for refusal

1 Also excluded from trade mark protection are signs that are:a.

identical to an earlier trade mark and are intended for the same goods or services;b.

identical to an earlier trade mark and intended for similar goods or services
such that a likelihood of confusion results.

c.

similar to an earlier trade mark and intended for the same or similar goods orservices such that a likelihood of confusion results.

2 An earlier trade mark is:a.

a filed or registered trade mark that gives rise to a right of priority under thisAct (Art. 6-8).

b.

a trade mark that is well known in Switzerland within the meaning of Article
6bis of the Paris Convention for the Protection of Industrial Property of 20
March 1883 (Paris Convention)4 at the time of filing the sign referred to inparagraph 1.

3 The grounds for refusal under this Article may only be invoked by the proprietor of

the earlier trade mark.

Art. 4

Registration in favour of the authorised user

Trade marks registered in the name of agents, representatives or other authorised
users without the consent of the proprietor, or trade marks which remain entered in theRegister after the withdrawal of such consent, are also not protected.

Section 2

Establishment of a Trade Mark Right; Priority

Art. 5

Establishment of a trade mark rightA trade mark right is established on entry in the Register.
Art. 6

Right of Priority

A trade mark right belongs to the person who first files the trade mark.
Art. 7

Priority under the Paris Convention

1 Where a trade mark is first duly filed in another Member State of the Paris Con-vention5 or with effect in such a Member State, the applicant or successor in title
452

SR 0.232.01, 0.232.04
SR 0.232.01, 0.232.04

Trade Mark Protection Act

232.11

may claim the date of the first filing for the filing of the same trade mark in Switzerland, provided the filing in Switzerland takes place within six months of the date of
the first filing.
2 The first filing in a state that grants reciprocity to Switzerland has the same effectas the first filing in a Member State of the Paris Convention.

Art. 8

Exhibition priority

Any person who exhibits goods or services bearing a trade mark at an official or
officially recognised exhibition under the Convention of 22 November 19286 Relating to International Exhibitions in a Member State of the Paris Convention7, may
claim the opening date of the exhibition for filing the application provided that thetrade mark is filed within six months of this date.
Art. 9Declaration of priority

1 Any person who claims priority under the Paris Convention8 or exhibition priority

must file a declaration of priority with the Swiss Federal Institute of Intellectual
Property (IPI). The IPI may require the submission of a priority document.9
2 The claim is forfeited if the time limits and formal requirements laid down by theOrdinance are not complied with.
3 Registration of priority is merely a presumption in favour of the proprietor of the

trade mark.

Section 3

Existence of a Trade Mark Right

Art. 10

Term of validity and renewal of registration

1 A registration is valid for 10 years from the date of filing the application.
2 A registration will be renewed for further periods of ten years if an application forrenewal is submitted and the fees as set out in the Ordinance are paid.10
3 The application for renewal must be submitted to the IPI within the last 12 months

prior to the expiry of the term of validity, but not later than six months after its expiry.11
4 …12
6
7
8
9
10

11

SR 0.945.11
SR 0.232.01, 0.232.04
SR 0.232.01, 0.232.04
Amended by No I of the Federal Act of 21 June 2013, in force since 1 Jan. 2017
(AS 2015 3631; BBl 2009 8533).
Amended by Annex No 2 of the Federal Act of 24 March 1995 on the Statue and Tasks of
the Swiss Federal Institute of Intellectual Property, in force since 1 Jan. 1996
(AS 1995 5050; BBl 1994 III 964).
Amended by No I of the Federal Act of 21 June 2013, in force since 1 Jan. 2017
(AS 2015 3631; BBl 2009 8533).

3232.11

Industrial Property

Art. 11

Use of the trade mark1 A trade mark is protected if it is used in relation to the goods or services for which it

is claimed.
2 Use in a manner not significantly different from the registered trade mark and use forexport purposes also constitute use of the trade mark.
3 Use of the trade mark with the consent of the proprietor is considered to be use by

the proprietor himself.
Art. 12Consequences of non-use

1 Where the proprietor has not used the trade mark in relation to the goods or services

for which it is claimed for an uninterrupted period of five years following the expiryof the opposition period with no opposition having been filed or upon conclusion of opposition proceedings, he may no longer assert his right to the trade mark,unless there are proper reasons for non-use.
2 If use of the trade mark is commenced or resumed after more than five years, theright to the trade mark is restored with effect from the original priority date, unless
non-use of the trade mark has been invoked under paragraph 1 prior to its commencement or resumption of use.
3 Any person who invokes non-use of a trade mark is required to substantiate his

claim; evidence of use is required to be provided by the proprietor of the trade mark.

Section 4

Rights Conferred by a Registered Trade Mark

Art. 13

Exclusive right1 A trade mark right confers on the proprietor the exclusive right to use the trade markto identify the goods or services for which it is claimed and to dispose of it.
2 The proprietor of a trade mark may prohibit others from using a sign that is ex-

cluded from trade mark protection under Article 3 paragraph 1, in particular, from:

12
13

4

a.

affixing the sign to goods or their packaging;b.

offering goods, placing them on the market or stocking them for such purposes under the sign;c.

offering or providing services under the sign;d.

importing, exporting or carrying in transit goods under the sign;13e.

using the sign on business papers, in advertising, or otherwise in the courseof trade.

Repealed by Annex No 2 of the Federal Act of 24 March 1995 on the Statute und Tasksof the Swiss Federal Institute of Intellectual Property (AS 1995 5050; BBl 1994 III 964).
Amended by Annex No 3 of the Federal Act of 22 June 2007, in force since 1 July 2008
(AS 2008 2551; BBl 2006 1).

Trade Mark Protection Act

232.112bis The proprietor of the trade mark may also assert the rights under paragraph 2
letter d if the import, export or transit of commercially manufactured goods is carried out for private purposes.14
3 The proprietor of the trade mark may also assert the rights under this Article

against authorised users in terms of Article 4.15
Art. 14

Limitation concerning previously used signs

1 The proprietor of a trade mark may not prohibit another person from continuing touse a sign to the same extent as already previously used prior to the filing of theapplication.
2 This right to continued use may only be assigned together with the undertaking.

Art. 15

Famous trade marks

1 The proprietor of a famous trade mark may prohibit others from using his trade markfor any type of goods or services if such use threatens the distinctiveness of the trade
mark or exploits or damages its reputation.
2 Rights acquired before the trade mark became famous remain unaffected.

Art. 16

Reproduction of trade marks in dictionaries and other reference
works

Where a registered trade mark is reproduced in a dictionary, in another reference work or in a similar work without reference to its registration, the proprietor of
the trade mark may require that the publisher, editor or distributor of the work include
a corresponding reference, at the latest in a reprint.

Section 5

Modifications concerning Trade Mark Rights

Art. 17

Assignment

1 The proprietor may assign his trade mark in whole or in part for the goods or services

for which it has been claimed.

2 The assignment is only valid if evidenced in writing. It is only effective in relation tothird parties who are acting in good faith once it has been entered in the Register.
3 Actions under this Act may be brought against the previous proprietor up to the entryof the assignment in the Register.
4 Unless otherwise agreed, the assignment of an undertaking also includes the assign-

ment of its trade marks.
14
15

Inserted by Annex No 3 of the Federal Act of 22 June 2007, in force since 1 July 2008
(AS 2008 2551; BBl 2006 1).
Amended by Annex No 3 of the Federal Act of 22 June 2007, in force since 1 July 2008
(AS 2008 2551; BBl 2006 1).

5232.11Art. 17a16

Industrial Property

Division of an application or registration

1 The proprietor of a trade mark may at any time request the division of a registra-tion or an application for registration.17
2 The goods and services are divided between the divisional applications or division-

al registrations.
3 Divisional applications or registrations retain the filing date and priority date of theoriginal application or original registration.
Art. 18

Licencing

1 The proprietor of a trade mark may permit others to use the trade mark for the

goods or services for which it is claimed, in whole or in part, and for the wholeterritory or a part of Switzerland only.
2 The licence shall be entered in the Register at the request of one of the parties. It

then becomes binding on any rights to the trade mark subsequently acquired.
Art. 19

Usufruct and pledge; compulsory enforcement

1A

trade mark may be subject to usufruct, pledge or compulsory enforcement
measures.

2 Usufruct and pledges only have effect against third parties acting in good faith ifthey are entered in the Register.

Section 6

International Treaties

Art. 20
1 …18
2 Where international treaties binding on Switzerland grant more extensive rights than

this Act, such rights also apply to Swiss nationals.

Chapter 2

Guarantee Marks and Collective Marks

Art. 21

Guarantee marks

1 A guarantee mark is a sign that is used by several undertakings under the supervi-

sion of the proprietor of the mark and which serves to guarantee the quality, geo16
17
18

6

Inserted by No I of the Federal Act of 4 Oct. 1996, in force since 1 May 1997
(AS 1997 1028; BBl 1996 II 1425).
Amended by No I of the Federal Act of 21 June 2013, in force since 1 Jan. 2017
(AS 2015 3631; BBl 2009 8533).
Repealed by No II 11 of the Federal Act of 20 March 2008 on the Formal Revision ofFederal Legislation, with effect since 1 August 2008 (AS 2008 3437; BBl 2007 6121).

Trade Mark Protection Act

232.11graphical origin, the method of manufacture or other characteristics common to
goods or services of such undertakings.
2 A guarantee mark may not be used for goods or services of the proprietor of themark or of an undertaking with which he has close economic ties.
3 In return for equitable remuneration, the proprietor of the guarantee mark must allow

any person to use it for goods or services that possess the common characteristics
guaranteed under the regulations governing the use of the mark.
Art. 22

Collective marks

A collective mark is a sign of an association of manufacturing, trading or service
undertakings which serves to distinguish the goods or services of the members of theassociation from those of other undertakings.
Art. 23

Regulations governing the use of guarantee/collective marks

1 The applicant of a guarantee or collective mark must file regulations governing theuse of the mark with the IPI19.
2 The regulations for guarantee marks shall designate the common characteristics of thegoods or services which the mark is intended to guarantee; they shall also provide for aneffective control of the use of the mark and for appropriate sanctions.
3 The regulations for collective marks shall designate those undertakings that are entitled
to use the mark.
4 The regulations may not be contrary to public policy, morality or applicable law.

Art. 24

Approval of the regulations

The regulations must be approved by the IPI. Approval will be granted if the requirements under Article 23 are fulfilled.
Art. 25

Unlawful regulations

Where the regulations do not fulfil or no longer fulfil the requirements of Article
23 and the proprietor of the mark does not remedy the situation within the time limit
determined by the court, the registration of the mark becomes null and void on expiry ofthis time limit.
Art. 26

Use in contravention of the regulations

Where the proprietor of the mark tolerates repeated use of a guarantee or collective
mark that infringes the main provisions of the regulations and he does not remedy
the situation within the time limit determined by the court, the registration of the markbecomes null and void on expiry of this time limit.
19

Term in accordance with No I of the Federal Act of 21 June 2013, in force since 1
Jan. 2017 (AS 2015 3631; BBl 2009 8533). Account has been taken of this term throughout the text of this Act.

7

232.11

Industrial Property

Art. 27

Assignment and licencing

The assignment of a guarantee or collective mark and the grant of licences withrespect to collective marks are only valid if entered in the Register.

Chapter 2a20 Geographical Marks
Art. 27a

Subject matter

By way of derogation from Article 2 letter a, a geographical mark may be registeredfor:a.

a designation of origin or a geographical indication registered under Article
16 of the Agriculture Act of 19 April 199821 (AgricA), or a geographical indication registered under Article 50a of this Act;b.

a registered designation of origin protected under Article 63 AgricA or a foreign wine designation which meets the requirements of Article 63 AgricA;c.

an indication of source that is the subject matter of a Federal Council ordinance under Article 50 paragraph 2, or a foreign indication of source that isbased on an equivalent foreign regulation.

Art. 27b

Entitlement to register

The registration of a geographical mark may be requested by:a.

the group which registered the designation of origin or the geographical indication, or where such group no longer exists, the representative groupwhich has assumed the role of protecting this designation of origin or geographical indication;b.

the Swiss canton that protects the registered designation of origin or the foreign authority responsible for the regulation of wine designations corresponding to Article 63 AgricA22, as well as the group that obtained the protection of such a foreign wine designation;c.

the umbrella organisation of an economic sector for which the Federal
Council has enacted an ordinance based on Article 50 paragraph 2 or whichacts on the basis of on an equivalent foreign regulation.

Art. 27c

Trade mark regulations

1 The applicant for a geographical mark must file regulations governing the use of

the mark with the IPI.

20

Inserted by No I of the Federal Act of 21 June 2013, in force since 1 Jan. 2017
(AS 2015 3631; BBl 2009 8533).
21 SR 910.1
22 SR 910.1

8

Trade Mark Protection Act

232.11

2 The regulations must correspond to the product specification or the applicableprovisions; they may not provide for remuneration in exchange for use of the geographical mark.
Art. 27d

Rights1 A geographical mark may be used by any person provided that the requirements of

the regulations are fulfilled.
2 The proprietor of a geographical mark may prohibit others from using the mark in

the course of trade for identical or comparable goods where such use contravenes theregulations.
Art. 27e

Non-applicable provisions

1 By way of derogation from Articles 17 and 18, a geographical mark may not betransferred or licensed.
2 By way of derogation from Article 31, the proprietor of a geographical mark may

not oppose the registration of a trade mark.
3 The provisions governing the use of the trade mark and consequences of non-use

under Articles 11 and 12 do not apply.

Chapter 3
Section 1

Registration of Trade Marks
Registration Procedure

Art. 28

Filing1 Any person may file a trade mark application.
2 When filing an application with the IPI, the following must be submitted:a.

an application for registration with details of the name or company name of
the applicant;b.

a representation of the trade mark;c.

a list of goods or services for which the trade mark is to be claimed.

3 When filing an application, the relevant fees prescribed in the Ordinance must be

paid.23
4 …24

23

24

Amended by Annex No 2 of the Federal Act of 24 March 1995 on the Statute and Tasksof the Swiss Federal Institute of Intellectual Property, in force since 1 Jan. 1996
(AS 1995 5050; BBl 1994 III 964).
Repealed by Annex No 2 of the Federal Act of 24 March 1995 on the Statute und Tasksof the Swiss Federal Institute of Intellectual Property 1996 (AS 1995 5050;
BBl 1994 III 964).

9232.11

Industrial Property

Art. 29

Date of filing

1 A trade mark is considered to have been filed once the documents referred to in

Article 28 paragraph 2 have been submitted.
2 If, after filing an application, a trade mark is replaced or essential elements of it aremodified or if the list of goods or services is extended, then the date of filing is considered to be the day on which those modifications were submitted.
Art. 30

Decision and registration

1 The IPI shall dismiss an application for registration if it does not fulfil the require-ments of Article 28 paragraph 2.
2 It shall reject the application for registration if:a.

it does not fulfil the formal requirements laid down in this Act or in the Ordinance;b.

the prescribed fees have not been paid;c.

absolute grounds for refusal exist;d.

the guarantee or collective mark does not fulfil the requirements of Articles
21–23.

e.25 the geographical mark does not fulfil the requirements of Articles 27a –27c.
3 It shall register the trade mark if no grounds for refusal exist.

Section 2

Opposition Proceedings

Art. 31

Opposition

1 The proprietor of an earlier trade mark may file an opposition to a registration on

the basis of Article 3 paragraph 1.
1bis He may not file an opposition to a registration of a geographical mark.26
2 The opposition must be submitted in writing to the IPI with a statement of reasons

within three months of publication of the registration. The opposition fee must also
be paid within this time limit.
Art. 32

Providing prima facie evidence of use

If the applicant claims non-use of the earlier mark under Article 12 paragraph 1, theopposing party must provide prima facie evidence of the use of his trade mark or
proper reasons for non-use.

25
26

10

Inserted by No I of the Federal Act of 21 June 2013, in force since 1 Jan. 2017
(AS 2015 3631; BBl 2009 8533).
Inserted by No I of the Federal Act of 21 June 2013, in force since 1 Jan. 2017
(AS 2015 3631; BBl 2009 8533).

Trade Mark Protection Act

Art. 33232.11

Decision on opposition

If the opposition is justified, the registration shall be revoked in whole or in part; if
this is not the case, the opposition shall be rejected.
Art. 34

Costs

With its decision on the opposition, the IPI shall determine whether and to what
extent the costs of the successful party shall be compensated by the unsuccessful
party.

Section 3

Cancellation of the Registration

Art. 35

Requirements27

The IPI shall cancel a trade mark registration in whole or in part if:a.

the proprietor requests the cancellation;b.

the registration has not been renewed;c.

the registration has been declared null and void in a final court decision;d.28

the protected designation of origin or the protected geographical indication
on which the geographical mark is based is cancelled;e.29 a request for cancellation is approved.
Art. 35a30

Request1 Any person may file a request for cancellation of the trade mark with the IPI on the

grounds of non-use in accordance with Article 12 paragraph 1.
2 The request may be filed at the earliest:a.

if no opposition has been filed: five years following the expiry of the opposition period;b.

in the event of opposition proceedings: five years after the conclusion of opposition proceedings.

3 The request is deemed to have been filed as soon as the appropriate fee has been
paid.

27
28
29
30

Amended by No I of the Federal Act of 21 June 2013, in force since 1 Jan. 2017
(AS 2015 3631; BBl 2009 8533).
Inserted by No I of the Federal Act of 21 June 2013, in force since 1 Jan. 2017
(AS 2015 3631; BBl 2009 8533).
Inserted by No I of the Federal Act of 21 June 2013, in force since 1 Jan. 2017
(AS 2015 3631; BBl 2009 8533).
Inserted by No I of the Federal Act of 21 June 2013, in force since 1 Jan. 2017
(AS 2015 3631; BBl 2009 8533).

11

232.11

Industrial Property

Art. 35b31

Decision

1 The IPI shall reject the request, if:a.

the applicant fails to show credible non-use of the trade mark; orb.

the proprietor of the trade mark shows credible use of the trade mark or
proper reasons for its non-use.

2 Where credible non-use is shown for only some of the goods or services claimed,

the IPI shall approve the request only to the extent thereof.
3 With the decision on the request, the IPI shall determine whether and to what

extent the costs of the successful party shall be reimbursed by the unsuccessful
party.
Art. 35c32

Procedure

The Federal Council shall enact rules governing the details of this procedure.

Section 4…

Art. 3633

Section 5
Register, Publications and Electronic Administrative Communication34
Art. 37

Maintenance of the Register

The IPI shall maintain the Trade Mark Register.
Art. 38

Publications

1 The IPI shall publish:

31
32
33
34

12

a.

the registration of trade marks (Art. 30 para. 3);b.

the renewal of trade mark registrations (Art. 10 para. 2);c.

the revocation of trade mark registrations (Art. 33);d.

the cancellation of trade mark registrations (Art. 35);

Inserted by No I of the Federal Act of 21 June 2013, in force since 1 Jan. 2017
(AS 2015 3631; BBl 2009 8533).
Inserted by No I of the Federal Act of 21 June 2013, in force since 1 Jan. 2017
(AS 2015 3631; BBl 2009 8533).
Repealed by Annex No 21 of the Federal Administrative Court Act of 17 June 2005, witheffect from 1 Jan. 2007 (AS 2006 2197; BBl 2001 4202).
Amended by Annex No 4 of the Federal Act of 19 Dec. 2003 on Electronic Signatures, inforce since 1 Jan. 2005 (AS 2004 5085; BBl 2001 5679).

Trade Mark Protection Act

232.11

2 The Federal Council shall determine which additional entries in the Register are to be

published.
3 The IPI shall determine the organ of publication.35

Art. 39

Access to the Register; inspection of the files

1 Any person may inspect the Register, obtain information on its contents and re-quest extracts from it.
2 In addition, any person may inspect the files of a registered trade mark.
3 The Federal Council shall regulate the cases in which inspection of the dossier ispermitted prior to the registration of a trade mark.
Art. 4036

Electronic administrative communication

1 The Federal Council may authorise the IPI to regulate electronic communication inaccordance with the general provisions on the administration of federal justice.
2 The dossier and the files may be maintained and stored in electronic form.
3 The Trade Mark Register may be maintained in electronic form.
4 The IPI may make its database accessible, particularly online, to third parties; it

may demand remuneration for this service.
5 The IPI’s publications may be produced in electronic form; the electronic version,

however, is only authoritative if the data is exclusively published in electronic form.

Section 6

Further Processing for Missed Time Limits

Art. 41
1 If the applicant or the rights holder fails to observe a time limit required by the IPI,he may file a request with the latter for further processing. Article 24 paragraph 1 of
the Federal Act of 20 December 196837 on Administrative Procedure remains reserved.38
2 The request must be filed within two months of the applicant receiving notice of the

expiry of the time limit, and at the latest within six months of expiry of the said time

35
36
37
38

Amended by Annex No II 3 of the Designs Act of 5 Oct. 2001, in force since 1 July 2002
(AS 2002 1456; BBl 2000 2729).
Amended by Annex No 4 of the Federal Act of 19 Dec. 2003 on Electronic Signatures, inforce since 1 Jan. 2005 (AS 2004 5085, BBl 2001 5679).
SR 172.021
Amended by Annex No 3 of the Federal Act of 22 June 2007, in force since 1 July 2008
(AS 2008 2551; BBl 2006 1).

13

232.11

Industrial Property

limit; within this time limit, the omitted act must be carried out in full and the fees as
set out in the Ordinance paid.39
3 If the request is approved, this will have the effect of restoring the situation thatwould have resulted from carrying out the act within the time limit.
4 Further processing is ruled out in the case of failure to observe:a.

time limits for filing a request for further processing (para. 2);b.

time limits for claiming priority under Articles 7 and 8;c.

the time limit for filing opposition under Article 31 paragraph 2;d.40

the time limit for filing an application for renewal under Article 10 paragraph 3;

e.41 the time limits in cancellation proceedings under Articles 35a–35c.

Section 7

Representation

Art. 4242
Any person who is party to an administrative procedure under this Act but is not
domiciled or does not have a registered office in Switzerland must designate anaddress for service in Switzerland.

Section 8

Fees

Art. 43
1 In addition to the cases referred to in this Act, fees are payable for official actions in

response to specific requests.
2 …43

39

40
41
42
43

14

Amended by Annex No 2 of the Federal Act of 24 March 1995 on the Statute and Tasksof the Swiss Federal Institute of Intellectual Property, in force since 1 Jan. 1996
(AS 1995 5050; BBl 1994 III 964).
Inserted by Annex No 3 of the Federal Act of 22 June 2007, in force since 1 July 2008
(AS 2008 2551; BBl 2006 I).
Inserted by No I of the Federal Act of 21 June 2013, in force since 1 Jan. 2017
(AS 2015 3631; BBl 2009 8533).
Amended by Annex No 1 of the Patent Attorney Act of 20 March 2009, in force since
1 July 2011 (AS 2011 2259; BBl 2008 407).
Repealed by Annex No 2 of the Federal Act of 24 March 1995 on the Statute and Tasks of
the Swiss Federal Institute of Intellectual Property, with effect from 1 Jan. 1996
(AS 1995 5050; BBl 1994 III 964).

Trade Mark Protection Act

232.11

Chapter 444 International Registration of Trade Marks
Art. 44

Applicable law

1 This Chapter applies to international registrations under the Madrid Agreement

Concerning the International Registration of Marks of 14 July 196745 (the Madrid
Agreement) and the Protocol of 27 June 198946 relating to the Madrid Agreement
concerning the International Registration of Marks (the Madrid Protocol) that aredone through the intermediary of the IPI or which have effect in Switzerland.
2 The other provisions of this Act apply except where the Madrid Agreement, theMadrid Protocol or this Chapter provide otherwise.

Art. 45

Application for registration in the International Register

1 It is possible to request the following through the intermediary of the IPI:a.

the international registration of a trade mark provided that Switzerland is thecountry of origin in accordance with Article 1 paragraph 3 of the Madrid
Agreement47, or Article 2 paragraph 1 of the Madrid Protocol48;b.

the modification of an international registration provided that Switzerland is thecountry of the proprietor of the trade mark in accordance with the Madrid
Agreement or the Madrid Protocol;c.

the international registration of an application provided that Switzerland is thecountry of origin in accordance with Article 2 paragraph 1 of the MadridProtocol.

2 The fees as set out in the Madrid Agreement, the Madrid Protocol and in the Ordi-nance must be paid for the international registration of a trade mark, an application forregistration or the modification of an international registration.
Art. 46

Effect of international registration in Switzerland

1 An international registration with effect in Switzerland has the same effect as thefiling of an application with the IPI and registration in the Swiss Register.
2 Such effect does not arise if and to the extent the internationally registered trade

mark has been refused protection in Switzerland.
Art. 46a

Conversion of an international registration into a national application
for registration

1 An international registration may be converted into a national application forregistration if:
44
45
46
47
48

Amended by No I of the Federal Act of 4 Oct. 1996, in force since 1 May 1997
(AS 1997 1028; BBl 1996 II 1425).
SR 0.232.112.3
SR 0.232.112.4
SR 0.232.112.3
SR 0.232.141.4

15

232.11

Industrial Propertya.

the application is submitted to the IPI within three months of cancelling theinternational registration;b.

the international registration and the national application for registration
concern the same trade mark;c.

the goods and services indicated in the application were also the actual goods andservices covered by the international registration having effect in Switzerland;d.

the national application for registration fulfils the other requirements laid
down in this Act.

2 Objections raised against the registration of trade marks filed in accordance withparagraph 1 are inadmissible.

Title 2

Indications of Source

Art. 47

Principle

1 Indications of source are direct or indirect references to the geographical origin ofgoods or services, including references to their characteristics or the quality associated with their origin.
2 Geographical names and signs that are not understood by the relevant public as

indicating a certain origin of the goods or services, are not considered indications ofsource within the meaning of paragraph 1.
3 It is prohibited to use:a.

incorrect indications of source;b.

designations that may be confused with an incorrect indication of source;c.49 a name, a company name, an address or a trade mark associated with goods
or services of a different origin where this could be misleading.
3bis Where indications of source are used with additions such as «kind», «type»,«style» or «imitation», the same requirements must be fulfilled that apply to the useof indications of source without these additions.50
3ter Indications regarding research or design or other specific activities associatedwith the product may only be used if this activity takes place entirely at the specified
location.51
4 Regional or local indications of source for services are considered to be correct ifsuch services satisfy the criteria of origin for the country concerned as a whole.

49
50
51

16

Amended by No I of the Federal Act of 21 June 2013, in force since 1 Jan. 2017
(AS 2015 3631; BBl 2009 8533).
Inserted by No I of the Federal Act of 21 June 2013, in force since 1 Jan. 2017
(AS 2015 3631; BBl 2009 8533).
Inserted by No I of the Federal Act of 21 June 2013, in force since 1 Jan. 2017
(AS 2015 3631; BBl 2009 8533).

Trade Mark Protection Act

Art. 4852

232.11

Indications of source for goods

1 Indications of source for goods are considered to be correct if the requirements

under Articles 48a-48c are fulfilled.
2 Any additional requirements such as compliance with manufacturing or processing

principles or quality requirements that are customary or prescribed in the place oforigin must also be fulfilled.
3 In each individual case, all requirements are to be determined according to theunderstanding of the relevant public, and where applicable, in accordance with theirinfluence on the reputation of the goods concerned.
4 The place of origin or processing for Swiss indications of source for natural prod-

ucts and foodstuffs is the Swiss territory and customs union areas. The Federal
Council may define the border areas, which are exceptionally considered as theplace of origin or processing for Swiss indications of source.
5 Where a foreign indication of source meets the statutory requirements of the coun-try concerned, it is considered to be correct. Any possible misleading of consumers
in Switzerland remains reserved.
Art. 48a53

Natural products

The origin of a natural product corresponds to:a.

for mineral products: the place where they were extracted;b.

for plant products: the place where they were harvested;c.

for meat: the place where the animals spent the predominant part of theirlives;

d.

for other animal-derived products: the place where the animals were kept;e.

for products of hunting or fishing: the place where such hunting or fishing
was carried out;f.

for farmed fish: the place where they were reared.

Art. 48b54

Foodstuffs

1 Foodstuffs within the meaning of the Foodstuffs Act of 9 October 199255 (FSA)

fall under this provision, with the exception of natural products under Article 48a of
this Act. The Federal Council shall regulate the differences in detail.

52
53
54
55

Amended by No I of the Federal Act of 21 June 2013, in force since 1 Jan. 2017
(AS 2015 3631; BBl 2009 8533).
Inserted by No I of the Federal Act of 21 June 2013, in force since 1 Jan. 2017
(AS 2015 3631; BBl 2009 8533).
Inserted by No I of the Federal Act of 21 June 2013, in force since 1 Jan. 2017
(AS 2015 3631; BBl 2009 8533).
SR 817.0

17232.11

Industrial Property

2 The origin of a foodstuff is the place from which at least 80 per cent of the raw

material weight that makes up the foodstuff comes from. For milk and dairy products, the weight of milk as the raw material must equal 100 per cent.
3 Excluded from the calculation under paragraph 2 are:a.

natural products which, due to natural conditions, cannot be produced at theplace of origin;b.

natural products that are temporarily not available in sufficient quantities atthe place of origin.

4 For the calculation under paragraph 2, all raw materials for which the domestic

self-supply rate is at least 50 per cent must be taken into account. Where the raw
material self-supply rate is 20–49.9 per cent, only half of the raw materials are to betaken into account. Where the raw material self-supply rate is less than 20 per cent,the raw materials may be excluded from the calculation. The Federal Council shallregulate the details.
5 In addition, the indication of source must correspond to the place where the pro-cessing, which has given the foodstuff its essential characteristics, has taken place.
Art. 48c56

Other products, in particular industrial products

1 The origin of other products, in particular industrial products, corresponds to theplace where at least 60 per cent of the manufacturing costs are incurred.
2 For the calculation under paragraph 1, the following shall be taken into account:a.

production and assembly costs;b.

research and development costs;

c.

costs for quality assurance and certification which are prescribed by law orstandardised in an economic sector.

3 Excluded from the calculation under paragraph 1 are:

56

18

a.

costs for natural products which, due to natural conditions, cannot be produced at the place of origin;b.

costs for raw materials which, in accordance with an ordinance under Article
50 paragraph 2, are not available in sufficient quantities at the place of origin
for objective reasons;c.

packaging costs;d.

transport costs;e.

the costs for distribution of the goods, as well as costs for marketing andcustomer service.

Inserted by No I of the Federal Act of 21 June 2013, in force since 1 Jan. 2017
(AS 2015 3631; BBl 2009 8533).

Trade Mark Protection Act

232.11

4 In addition, the indication of source must correspond to the place where the activi-

ty, which gave the product its essential characteristics, took place. In all cases, anessential manufacturing step must have been carried out at this place.
Art. 48d57

Exceptions

The requirements set out in Articles 48a–48c do not apply if:a.

a geographical indication was registered under Article 16 AgricA58 prior to
the entry into force of this provision; orb.

a manufacturer is able to prove that the indications of source used correspond to the relevant public.

Art. 4959

Indications of source for services

1 The indication of source of a service is considered to be correct if:a.

it corresponds to the registered office of the person providing the service;andb.

a place of effective administration of this person is located in the same country.

2 Where a parent company fulfils the requirements of paragraph 1 letter a, and either

it or one of its subsidiaries effectively controlled by it and domiciled in the same
country fulfils the requirements of paragraph 1 letter b, then the indication of sourceis also considered to be correct for similar services provided by the foreign subsidiaries and the branch offices of the parent company.
3 Any additional requirements such as compliance with prescribed or customary

principles of providing the service or the traditional association of the person providing the service with the country of origin must also be fulfilled.
4 A foreign indication of source is considered to be correct where it meets the statu-

tory requirements of the country concerned. Any possible misleading of consumers
in Switzerland remains reserved.
Art. 49a60

Indications of source in advertising

Indications of source in advertising are considered to be correct if the origin of all of
the products and services advertised therein corresponds to Articles 48–49.

57
58
59
60

Inserted by No I of the Federal Act of 21 June 2013, in force since 1 Jan. 2017
(AS 2015 3631; BBl 2009 8533).
SR 910.1
Amended by No I of the Federal Act of 21 June 2013, in force since 1 Jan. 2017
(AS 2015 3631; BBl 2009 8533).
Inserted by No I of the Federal Act of 21 June 2013, in force since 1 Jan. 2017
(AS 2015 3631; BBl 2009 8533).

19

232.11

Industrial Property

Art. 5061

Special provisions

1 Where justified by consumer interests, the general interests of the economy or ofindividual sectors, the Federal Council may define the requirements under Articles
48 paragraph 2 and 48a–49 in greater detail.
2 It may, in particular, at the request and based on a preliminary draft of an economic

sector, define in greater detail the requirements under which a Swiss indication ofsource may be used for specific goods and services.
3 It shall first hear the Cantons concerned and interested professional and tradeassociations, as well as consumer organisations.
Art. 50a62

Register for geographical indications

1 The Federal Council shall establish a register for geographical indications forgoods, which excludes agricultural products, processed agricultural products andwine, as well as forestry products and processed forestry products.
2 It regulates in particular:a.

entitlement to register;b.

requirements for registration, in particular the requirements for the productspecification;c.

the procedure for registration and objection;d.

control procedures.

3 Decisions and services in connection with the register are subject to fees.
4 Registeredgeographical indications may not become generic names. Genericnames cannot be registered as geographical indications.

5 Any person who uses a registered geographical indication for identical or compa-

rable goods must comply with the product specifications. This obligation does not
apply to the use of trade marks that are identical or similar to a registered geographical indication and which were filed or registered in good faith, or that have beenacquired through use in good faith:a.

prior to 1 January 1996; orb.

prior to the name of the registered geographical indication being protected in
the country of origin, insofar as none of the grounds for nullity or revocation
set out in this Act apply to the trade mark concerned.

6 Where a trade mark containing a geographical indication, identical or similar to ageographical indication for which registration has been applied, is filed for identicalor comparable goods, the trade mark examination procedure shall be suspended until
the final decision on the application for registration of the geographical indication.
61
62

20

Amended by No I of the Federal Act of 21 June 2013, in force since 1 Jan. 2017
(AS 2015 3631; BBl 2009 8533).
Inserted by No I of the Federal Act of 21 June 2013, in force since 1 Jan. 2017
(AS 2015 3631; BBl 2009 8533).

Trade Mark Protection Act

232.11

7 Following registration of the geographical indication, the trade mark may only be

registered for identical or comparable goods. The goods must be restricted to thegeographical origin described in the product specifications.
8 Registered geographical indications are protected in particular against:a.

any commercial use for other products, whereby the reputation of the protected designation is exploited;b.

any act of appropriation, counterfeiting or imitation.

Art. 51

Producer identification mark

Where the interests of an economic sector so require, the Federal Council may
prescribe that a producer identification mark be affixed to goods of that economic
sector.

Title 3
Chapter 1

Legal Protection
Protection under Civil Law

Art. 51a63

Reversal of the burden of proof

The user of an indication of source must prove that it is correct.
Art. 52

Action for declaratory judgment

Any person who can demonstrate a legal interest may apply to the court for a declaratory judgement as to whether a right or legal relationship governed by this Act doesor does not exist.
Art. 53

Action for assignment of a trade mark1 The plaintiff may bring an action for the assignment of the trade mark instead of adeclaration of nullity of the trade mark registration if the defendant has usurped thetrade mark.
2 This right shall lapse two years after publication of the registration or after with-drawal of the proprietor’s consent under Article 4.
3 If the court orders the assignment, then licences or other rights granted to third

parties in the intervening period lapse; however, if they have used the trade markcommercially in Switzerland in good faith or have made special preparations for thispurpose, these third parties are entitled to be granted a non-exclusive licence.64

6364

Inserted by No I of the Federal Act of 21 June 2013, in force since 1 Jan. 2017
(AS 2015 3631; BBl 2009 8533).
Inserted by Annex No 3 of the Federal Act of 22 June 2007, in force since 1 July 2008
(AS 2008 2551; BBl 2006 1).

21

232.11

Industrial Property

4 Any claims for damages remain reserved.65

Art. 5466

Notification of decisions

The authority passing judgment shall provide the IPI with full official copies of its
decisions, including those regarding preliminary measures and decisions on dismissal after they have been issued, without delay and free of charge.
Art. 55

Action for performance

1 Any person whose right to a trade mark or an indication of source is infringed or

threatened may request the court:a.

to prohibit an imminent infringement;b.

to remedy an existing infringement;

c.67 to require the defendant to provide information on the origin and quantity ofitems in his possession that unlawfully bear the trade mark or the indicationof source and to name the recipients and disclose the extent of any distribution to commercial and industrial customers.
2 Actions brought under the Code of Obligations68 for damages, satisfaction andhanding over of profits in accordance with the provisions concerning agency withoutauthority remain reserved.
2bis An action for performance may be instituted only after the entry of the trade
mark in the Register. Claims for damages may be made retroactively from the timeat which the defendant obtained knowledge of the content of the application forregistration.69
3 The use of a guarantee or collective mark contrary to the applicable regulations

also constitutes an infringement of a trade mark right.
4 Any person who holds an exclusive licence is entitled to bring a separate action

irrespective of the registration of the licence in the Register unless this is expressly
excluded in the licence agreement. Any licensees may join an infringement action inorder to claim for their own damages.70

65
66
67
68
69
70

22

Inserted by Annex No 3 of the Federal Act of 22 June 2007, in force since 1 July 2008
(AS 2008 2551; BBl 2006 1).
Amended by No I of the Federal Act of 21 June 2013, in force since 1 Jan. 2017
(AS 2015 3631; BBl 2009 8533).
Amended by Annex No 3 of the Federal Act of 22 June 2007, in force since 1 July 2008
(AS 2008 2551; BBl 2006 1).
SR 220Inserted by Annex No 3 of the Federal Act of 22 June 2007, in force since 1 July 2008
(AS 2008 2551; BBl 2006 1).
Inserted by Annex No 3 of the Federal Act of 22 June 2007, in force since 1 July 2008
(AS 2008 2551; BBl 2006 1).

Trade Mark Protection Act

Art. 5671

232.11

Right to bring action by associations, consumer organisations
and authorities

1 The following are also authorised to bring actions for a declaratory judgment(Art. 52) and actions for performance (Art. 55 para. 1) concerning the protection ofindications of source:a.

professional and trade associations authorised by their statutes to safeguard
the economic interests of their members;b.

organisations of national or regional importance dedicated by their statutes
to the protection of consumers;c.

the IPI, to the extent that designations such as «Switzerland», «Swiss» orother designations or symbols that indicate the geographical territory of the
Swiss Confederation within the meaning of Article 48 paragraph 4 are used;d.

the canton concerned, to the extent that its name or other designations orsymbols referring to its geographical territory are used.

2 Associations and organisations under paragraph 1 letters a and b are entitled tobring actions under Article 52 with respect to a guarantee mark (Art. 21 para. 1) orcollective mark (Art. 22).
3 The cantons shall designate the competent authority for actions under paragraph 1

letter d.
Art. 57

Forfeiture in civil proceedings

1 The court may order the forfeiture of items which unlawfully bear a trade mark or

an indication of source or of equipment, devices and other means that primarily
serve their manufacture.72
2 The court decides whether the trade mark or indication of source is to be madeunrecognisable or whether the items are to be rendered unusable, to be destroyed or
to be used in a specific way.
Art. 5873
Art. 5974

Preliminary measures

1 Any person requesting preliminary measures may, in particular, request that the

court orders measures to:
a.
71
72
73
74

secure evidence;
Amended by No I of the Federal Act of 21 June 2013, in force since 1 Jan. 2017
(AS 2015 3631; BBl 2009 8533).
Amended by Annex No 3 of the Federal Act of 22 June 2007, in force since 1 July 2008
(AS 2008 2551; BBl 2006 1).
Repealed by Annex 1 No II 10 of the Civil Procedure Code of 19 December 2008, witheffect from 1 Jan. 2011 (AS 2010 1739; BBl 2006 7221).
Amended by Annex 1 No II 10 of the Civil Procedure Code of 19 December 2008, in
force since 1 Jan. 2011 (AS 2010 1739; BBl 2006 7221).

23

232.11b.

Industrial Property

establish the origin of items unlawfully bearing a trade mark or indication ofsource;c.

preserve the existing state of affairs;d.

provisionally enforce claims for injunctive relief and remedy.

Art. 60

Publication of the judgment

The court may order, at the request of the successful party, that the judgment be
published at the expense of the other party. The court determines the form andextent of publication.

Chapter 2

Criminal Provisions

Art. 6175

Infringement of a trade mark right

1 On complaint of the injured party, any person who wilfully infringes the trade

mark right of another is liable to a custodial sentence not exceeding one year or amonetary penalty if he:a.

appropriates, counterfeits or imitates the trade mark of the other person;b.76 places goods on the market or provides services, or offers, imports, exports,
carries in transit or advertises such goods or services under the appropriated,counterfeited or imitated trade mark.
2 On complaint of the injured party, any person who refuses to provide informationon the origin or quantity of the items in his possession that unlawfully bear the trade
mark and to name the recipients and disclose the extent of distribution to commercial and industrial customers is also liable to the same penalties.
3 If the offender acts for commercial gain, he shall be prosecuted ex officio. The

penalty is a custodial sentence not exceeding five years or a monetary penalty. The
custodial sentence shall be combined with a monetary penalty.
Art. 62

Fraudulent use of trade marks

1 On complaint of the injured party, any person who commits any of the following

acts is liable to a custodial sentence not exceeding one year or a monetary penalty:77
a.

75
76
77

24

unlawfully labels goods or services with the trade mark of another person inorder to mislead and thereby give the impression that the goods or services
are original goods or services;

Amended by Annex No 3 of the Federal Act of 22 June 2007, in force since 1 July 2008
(AS 2008 2551; BBl 2006 1).
Amended by No I of the Federal Act of 21 June 2013, in force since 1 Jan. 2017
(AS 2015 3631; BBl 2009 8533).
Amended by Annex No 3 of the Federal Act of 22 June 2007, in force since 1 July 2008
(AS 2008 2551; BBl 2006 1).

Trade Mark Protection Actb.

232.11

offers or places goods or services on the market as original goods or services, or offers or provides original services that unlawfully bear the trade
mark of another;

2 If the offender acts for commercial gain, he shall be prosecuted ex officio. The

penalty is a custodial sentence not exceeding five years or a monetary penalty. The
custodial sentence shall be combined with a monetary penalty.78
3 ...79

Art. 63

Use of a guarantee or collective mark contrary to the regulations

1 On complaint of the injured party, any person who wilfully uses a guarantee orcollective mark in a manner contrary to the regulations is liable to a custodial sentence not exceeding one year or a monetary penalty.80
2 On complaint of the injured party, any person who refuses to provide informationon the origin of items in his possession that bear a guarantee or collective markcontrary to the regulations, is also liable to the same penalties.
3 Where only minor regulation provisions are concerned, a penalty may be dispensed

with.
4 If the offender acts for commercial gain, he shall be prosecuted ex officio. The

penalty is a custodial sentence not exceeding five years or a monetary penalty. The
custodial sentence shall be combined with a monetary penalty.81
Art. 6482

Use of incorrect indications of source

1 Any person who wilfully commits any of the following acts is liable to a custodial

sentence not exceeding one year or a monetary penalty:a.

uses an incorrect indication of source;b.

uses a designation that can be confused with an incorrect indication ofsource;c.

creates a risk of deception by using a name, a company name, an address ora trade mark associated with goods or services of a different origin.

2 If the offender acts for commercial gain, the penalty is a custodial sentence notexceeding five years or a monetary penalty. The custodial sentence shall be combined with a monetary penalty.

78
79
80
81
82

Amended by Annex No 3 of the Federal Act of 22 June 2007, in force since 1 July 2008
(AS 2008 2551; BBl 2006 1).
Repealed by No I of the Federal Act of 21 June 2013, with effect from 1 Jan. 2017
(AS 2015 3631; BBl 2009 8533).
Amended by Annex No 3 of the Federal Act of 22 June 2007, in force since 1 July 2008
(AS 2008 2551; BBl 2006 1).
Amended by Annex No 3 of the Federal Act of 22 June 2007, in force since 1 July 2008
(AS 2008 2551; BBl 2006 1).
Amended by No I of the Federal Act of 21 June 2013, in force since 1 Jan. 2017
(AS 2015 3631; BBl 2009 8533).

25

232.11

Industrial Property

3 The IPI may file a complaint with the competent prosecution authority and exercise

the rights of a private claimant in proceedings.
Art. 65

Offences concerning the producer identification markAny person who wilfully infringes the regulations concerning the producer identification mark shall be liable to a fine of up to 20,000 francs.
Art. 65a83

Non-punishable acts

Acts under Article 13 paragraph 2bis are not punishable.
Art. 66

Suspension of proceedings

1 The court may suspend criminal proceedings if the person under investigation

institutes civil proceedings for the nullity of the trade mark registration.
2 If the person under investigation pleads the nullity of the trade mark registration incriminal proceedings, the court may set an appropriate time limit for him to assert
such nullity in civil proceedings.
3 The limitation period for prosecution is suspended during the stay of proceedings.

Art. 67

Offences committed within a business

Articles 6 and 7 of the Federal Act of 22 March 197484 on Administrative Criminal
Law apply to offences committed within a business by subordinates, agents or
representatives.
Art. 6885

Forfeiture in criminal proceedings

Article 69 of the Swiss Criminal Code86 applies; the court can order the forfeiture of
an item which unlawfully bears a trade mark or an indication of source in its entirety.
Art. 69

Competence of the cantonal authorities

Criminal prosecution is a matter for the cantonal authorities.

83
84
85
86

26

Inserted by Annex No 3 of the Federal Act of 22 June 2007, in force since 1 July 2008
(AS 2008 2551; BBl 2006 1).
SR 313.0
Amended by Annex No 3 of the Federal Act of 22 June 2007, in force since 1 July 2008
(AS 2008 2551; BBl 2006 1).
SR 311.0

Trade Mark Protection Act

Chapter 3

Assistance provided by the Customs Administration

Art. 7087

Notification of suspicious consignments

232.11

1 The Customs Administration is authorised to notify the proprietor of the trademark, the person entitled to use an indication of source or a party entitled to instituteproceedings under Article 56 if there is any suspicion of the imminent transport ofgoods that unlawfully bear a trade mark or an indication of source into or out of thecustoms territory of Switzerland.88
2 In such cases, the Customs Administration is authorised to withhold the goods forthree working days, in order that the proprietor of the trade mark, the person entitled
to use the indication of source or a professional or trade association entitled to institute proceedings under Article 56 may file an application under Article 71.
Art. 71

Application for assistance

1 If the proprietor of the trade mark, the licensee entitled to institute proceedings, theperson entitled to use an indication of source or a party entitled to institute proceedings under Article 56 has clear indications of the imminent transport of goods thatunlawfully bear a trade mark or an indication of source into or out of the customs
territory of Switzerland, he or she may request the Customs Administration in writing to refuse the release of the goods.89
2 The applicant must provide all the information available to him that is necessary

for the Customs Administration’s decision; this includes a precise description of thegoods.
3 The Customs Administration shall make the final decision on the application. It

may charge a fee to cover the administrative costs.
Art. 7290

Withholding of goods

1 If the Customs Administration, as a result of an application under Article 71 para-graph 1, has reasonable grounds to suspect that certain goods intended to be transported into or out of the customs territory of Switzerland unlawfully bear a trade
mark or indication of source, then it shall notify the applicant and the declarant,
holder or owner of the goods accordingly.91

87
88
89
90
91

Amended by Annex No 3 of the Federal Act of 22 June 2007, in force since 1 July 2008
(AS 2008 2551; BBl 2006 1).
Amended by No I of the Federal Act of 21 June 2013, in force since 1 Jan. 2017
(AS 2015 3631; BBl 2009 8533).
Amended by No I of the Federal Act of 21 June 2013, in force since 1 Jan. 2017
(AS 2015 3631; BBl 2009 8533).
Amended by Annex No 3 of the Federal Act of 22 June 2007, in force since 1 July 2008
(AS 2008 2551; BBl 2006 1).
Amended by No I of the Federal Act of 21 June 2013, in force since 1 Jan. 2017
(AS 2015 3631; BBl 2009 8533).

27

232.11

Industrial Property

2 It shall withhold the goods for a maximum of ten working days from the time ofnotification pursuant to paragraph 1, so that the applicant may obtain preliminary
measures.
3 Where justified by circumstances, it may withhold the goods for a maximum of ten

additional working days.
Art. 72a92

Samples

1 While the goods are being withheld, the Customs Administration is authorised tohand over or deliver to the applicant, on request, samples for examination or topermit the applicant to inspect the goods being withheld.
2 The samples are collected and delivered at the expense of the applicant.
3 They must be returned after the examination has been carried out, if this is reason-

able. If samples are retained by the applicant, they are subject to the provisions ofcustoms legislation.
Art. 72b93

Safeguarding of manufacturing and trade secrets

1 At the same time as notification is made in accordance with Article 72 paragraph 1,

the Customs Administration shall inform the declarant, holder or owner of the goodsof the possible handover of samples or the opportunity to inspect them in accordancewith Article 72a paragraph 1.
2 The declarant, holder or owner may request to be present at the inspection in orderto safeguard his manufacturing or trade secrets.
3 The Customs Administration may refuse to hand over samples on reasoned requestfrom the declarant, holder or owner.
Art. 72c94

Application for destruction of the goods

1 Whenmaking an application under Article 71 paragraph 1, the applicant may
submit a written request to the Customs Administration to destroy the goods.

2 If an application for destruction is made, the Customs Administration shall notify

the declarant, holder or owner of the goods accordingly as part of the notification
made under Article 72 paragraph 1.
3 The application for destruction does not result in the time limits for obtaining

preliminary measures under Article 72 paragraphs 2 and 3 being extended.

92
93
94

28

Inserted by Annex No 3 of the Federal Act of 22 June 2007, in force since 1 July 2008
(AS 2008 2551; BBl 2006 1).
Inserted by Annex No 3 of the Federal Act of 22 June 2007, in force since 1 July 2008
(AS 2008 2551; BBl 2006 1).
Inserted by Annex No 3 of the Federal Act of 22 June 2007, in force since 1 July 2008
(AS 2008 2551; BBl 2006 1).

Trade Mark Protection Act

Art. 72d95

232.11Consent

1 The destruction of the goods requires the consent of the declarant, holder or owner.
2 Consent is deemed to be given if the declarant, holder or owner does not expressly

object to the destruction within the time limits under Article 72 paragraphs 2 and 3.
Art. 72e96

Evidence

Before the destruction of the goods, the Customs Administration shall remove samples and hold them in safekeeping as evidence in any actions for damages.
Art. 72f97

Damages

1 If the destruction of the goods proves to be unjustified, the applicant is exclusively

liable for the resultant loss.
2 If the declarant, holder or owner has given express written consent for the destruc-tion, no claims for damages may be made against the applicant if the destruction
later proves to be unjustified.
Art. 72g98

Costs

1 The destruction of the goods is carried out at the expense of the applicant.
2 The decision about the costs of collecting and safekeeping samples under Arti-cle 72e is made by the court in connection with the assessment of claims for damages in accordance with Article 72f paragraph 1.
Art. 72h99

Accountability statement and damages

1 If it is anticipated that withholding the goods may lead to a loss being incurred, theCustoms Administration may make the withholding of the goods dependent on theapplicant providing them with an accountability statement. As an alternative to thisstatement and where justified by circumstances, the Customs Administration may
request the applicant to provide appropriate security.
2 The applicant is liable for any losses incurred from withholding the goods andfrom collecting the samples if preliminary measures are not ordered or prove to beunjustified.

95
96
97
98
99

Inserted by Annex No 3 of the Federal Act of 22 June 2007, in force since 1 July 2008
(AS 2008 2551; BBl 2006 1).
Inserted by Annex No 3 of the Federal Act of 22 June 2007, in force since 1 July 2008
(AS 2008 2551; BBl 2006 1).
Inserted by Annex No 3 of the Federal Act of 22 June 2007, in force since 1 July 2008
(AS 2008 2551; BBl 2006 1).
Inserted by Annex No 3 of the Federal Act of 22 June 2007, in force since 1 July 2008
(AS 2008 2551; BBl 2006 1).
Inserted by Annex No 3 of the Federal Act of 22 June 2007, in force since 1 July 2008
(AS 2008 2551; BBl 2006 1).

29

232.11

Industrial Property

Title 4
Chapter 1

Final Provisions
Implementation

Art. 73
The Federal Council shall enact the implementation provisions.

Chapter 2

Repeal and Amendment of Federal Law

Art. 74

Repeal of current legislation

The Federal Act of 26 September 1890100 on the Protection of Factory and Trade
Marks, Indications of Source of Goods and Industrial Labelling is repealed. However, Article 16bis paragraph 2 remains applicable until the entry into force of Article
36 of this Act.
Art. 75

Amendment of current legislation

1. and 2. …101
3. The expressions «factory and trade marks» shall be replaced by «trade marks» inall enactments; the exception shall be Articles 1 and 2 of the Federal Act of 5 June
1931102 on the Protection of Public Coats of Arms and other Public Signs. The
enactments affected shall be amended at the next possible opportunity.

Chapter 3

Transitional Provisions

Art. 76

Filed or registered trade marks

1 Trade marks that have already been filed or registered upon entry into force of thisAct are subject to the new law from that date.
2 By way of derogation from paragraph 1, the following provisions apply:

100
101
102

30

a.

priority is governed by the previous law.

b.

grounds for refusing applications for registration, with the exception of absolute grounds for refusal, are governed by the previous law.

c.

oppositions to the registration of trade marks already filed on entry into forceof this Act are not admissible;d.

the validity of a registration terminates on expiry of the time limit applicable
under the previous law; up to such time, it may be renewed at any time.

[BS 2 845; AS 1951 903 Art. 1, 1971 1617, 1998 1776 Annex No I let. e]
These amendments may be consulted under AS 1993 274.
SR 232.21

Trade Mark Protection Acte.

232.11the first renewal of the registration of a collective mark is subject to the sameformal requirements as those for filing.

Art. 77

Trade marks previously not registrable

If, on entry into force of this Act, applications are pending for the registration of
trade marks excluded from registration under the previous law, but not under the
new law, the date of entry into force shall be considered the filing date.
Art. 78

Priority of use

Any person who first used a trade mark prior to the entry into force of this Act on
goods or their packaging or to identify services, has priority over the first applicant
on condition that he files the mark within two years of entry into force of this Act
and at the same time states the date on which use of the trade mark commenced.
2 …103Art. 78a104

Right to bring action by licensee

Article 55 paragraph 4 and Article 59 paragraph 5 only apply to licence agreementsthat have been concluded or confirmed after the Amendment to this Act dated 22
June 2007 enters into force.

Chapter 4

Referendum and Commencement

Art. 79
1 This Act is subject to an optional referendum.
2 The Federal Council shall determine the commencement date.

Commencement date: all provisions with the exception of Art. 36: 1 April 1993105
Art. 36: 1 January 1994106

103

Repealed by No II 11 of the Federal Act of 20 March 2008 on the Formal Revision ofFederal Legislation, with effect since 1 August 2008 (AS 2008 3437; BBl 2007 6121).
Inserted by Annex No 3 of the Federal Act of 22 June 2007, in force since 1 July 2008
(AS 2008 2551; BBl 2006 1).
105 Federal Council Decree of 23 Dec. 1992
106 Ordinance of 26 April 1993 (AS 1993 1839)
10431

232.1132

Industrial Property