|
|
 |
 |
 |
 |
 |
 |
 |
 |
|
ACTUALITESNEWS MAY-JUNE 2009
Trademarks - Switzerland: A consequence of this amendment is that patented products falling which have been put in circulation into the European Economic Area with the agreement of the patent owner may be imported into Switzerland without the agreement of the patent owner. However, for goods for which the prices are fixed by the Swiss Confederation and foreign states, notably pharmaceuticals, the Federal Chambers have decided that their importation will continue to be subjected to the agreement of the patent owner (national exhaustion of patent rights prevails). For more information on the exhaustion of patent rights: Designs- Switzerland: The decision confirmed that Art. 3 lit. d. LCD (Swiss unfair competition law) protects the presentation of a product ONLY if it has a distinctive character, i.e. it may be perceived as a commercial identifier of the company at the origin of the product. In order to preserve the freedom to imitate forms which are not protected by a trademark or a design right, the requirements for supporting and fulfilling a distinctive character of a presentation are quite high. In the present case, the characteristics of the plastic clogs “Beach” and “Cayman” are technically necessary or are constituted by simple geometric forms and are therefore completely devoid of any distinctive character. Further, it is stressed that an unusual variety of colours for shoes should NOT be taken into account in judging the distinctive strength as basic colours cannot be monopolized. The fact that the company Crocs Inc. has acquired notoriety in the public is not a sufficient justification that its two models “Beach” and “Cayman” have also acquired notoriety among the public. As a conclusion, the imitation of the presentation of a product lacking distinctive character is not per se prohibited under the angle of unfair competition law (Art. 2 LCD). As long as the respondant has used another trademark, which has been recognised in the present case, it showed its intention to avoid exploiting the product of the plaintiff on an unfair parasitic and malicious art under the sense of Art. 2 LCD. Patents - EPO: For the list of the European Patent Convention member states as of 01.07.2009, please consult: |
EN | FR
NEWS MARCH-APRIL 2009 |
 |
