Intellectual property rights
IP protection for software
What intellectual property rights are available to protect software and how do you obtain these rights?
Software is automatically protected under Swiss copyright law if and to the extent that it constitutes a copyrighted work (ie if it is an intellectual creation of individual character). Thus, it is not necessary for the author of the software to register the software or apply for protection to obtain copyright. In addition, patent protection is in principle also available for computer-implemented inventions where the necessary requirements are met. In any case, the abstract algorithm and basic idea underlying a computer software cannot be monopolized by copyright or patent protection.
IP developed by employees and contractors
Who owns new intellectual property rights developed by an employee during the employment relationship? Do the same rules apply to new intellectual property rights developed by contractors or consultants?
Ownership belongs to the employer under statutory law where an employee, by performing work for the employer and fulfilling his duties under the employment contract, creates an invention or design or computer software. In addition, the employer and employee can agree that additional intellectual property rights are transferred to the employer by contract. In practice, it is advisable that an employment agreement specifically deals with the transfer of intellectual property rights created by the employee in connection with the employment relationship with the employer. There are no express equivalent rules that apply to third party contractors and consultants, so ownership of the intellectual property created by such third parties must be determined in light of the specific circumstances. In practice, it is therefore advisable to put a clear contractual arrangement in place.
Joint ownership
Are there any restrictions on a co-owner of intellectual property’s right to use, license, charge or transfer its right to intellectual property?
Joint ownership is often discussed in contract negotiations, but usually not an ideal solution given that Switzerland, like many other jurisdictions, lacks explicit rules for joint ownership of intellectual property. When considered, it is therefore advisable to agree joint ownership only based on a clear contractual basis that governs each joint owner’s right to use, license, charge or assign the relevant intellectual property or ownership interest to such joint owner.
Trade secrets
How are trade secrets protected? Are trade secrets kept confidential during court proceedings?
Trade secrets are protected under various statutory laws, including labor law, unfair competition law and criminal law. The relevant provisions limit the unlawful disclosure and exploitation of trade secrets. In addition, contractual confidentiality agreements serve to protect the confidentiality of trade secrets. In legal proceedings, the court may, at the request of a party, order measures to protect the confidentiality of trade secrets disclosed during the proceedings.
Brand building
What intellectual property rights are available to protect branding and how do you obtain these rights? How can fintech companies ensure they don’t infringe on existing brands?
Trademark protection is available to protect branding. To obtain trademark protection, the relevant designation – such as a word or logo or a combination – must be submitted as a trademark application to the Swiss Federal Institute for Intellectual Property. In addition to trademark protection, brands may also be protected under unfair competition law, which prohibits certain deceptive practices in trade. It is advisable to carry out a proper search before adopting a mark to minimize the risk of infringement of existing trademark rights.
Remedies for IP infringement
What remedies are available to individuals or companies whose intellectual property rights have been infringed?
Generally, civil and criminal remedies may be available to individuals or companies whose intellectual property rights have been infringed. Civil remedies include actions to cease and desist from the infringing activities, damages and restitution of profits. In addition, infringements of intellectual property rights generally also constitute criminal offences, so that a person or company whose intellectual property rights have been infringed can also file criminal complaints.
