On 1 July 2002, a new Federal Law on Designs has entered into force, thus replacing the Federal Law of Designs and Models of 30 March 1900. The new Law will automatically apply to “old” design that had been registered before 1 July 2002. By adopting this Law, Switzerland will be able to ratify the Hague Agreement Concerning the International Deposit of Industrial Designs.
The main innovations of the new Law are the following ones:
According to the Design Act, a design is a creation of goods or parts of goods characterized by the layout of lines, outlines, colors and surfaces, or by the material used.
Two conditions are required in order to protect a Swiss Design: novelty (so-called formal novelty), which means that the design must not have been disclosed to the public at the time of the deposit at the Swiss Institute of Intellectual Property, and a certain originality (so-called substantive novelty), which means that the overall impression of a design must be substantially different from a design already known to the public. Under the Federal Law of 1900, the scope of protection was practically limited to identical designs; this scope will be extended under the new Law and protect a design against designs which show the same characteristic elements and, therefore, have the same overall appearance as a registered design. No Court has however pronounced itself over the scope of this protection yet.
The costs related to the registration of a Swiss Design are of Swiss Francs 200 for the first design, plus Swiss Francs 100 for each additional design that is registered simultaneously; if six or more designs are registered at the same time, the registration costs amount to a unique tax of Swiss Francs 600. The renewal of each Design costs the same amounts.
The maximum protection period has been extended from 15 to 25 years by offering five protection periods of five years.
For the first time in the history of Swiss IP legislation, the Design Law expressly permits the exclusive licensee to file a claim for infringement in his own name, provided that the licence agreement does not expressly exclude this possibility.
This implies that the question of the denial of the right of the licensee to sue must now be addressed when drafting a licensing agreement; considering the fact that the Law also applies to “old” designs, current license agreements should also be adapted on this point if necessary.
Finally, it is important to point out that the customs may intervene at the request of the holder of a Swiss Design registration, and retain the allegedly infringing objects during ten days; in order to maintain the seizure, the holder of the Swiss Design registration must file a claim for interim measures within this deadline.