Trademark & patent legal protection insurance

A patent is legal protection for a technical invention and it gives the owner the exclusive right to decide on its commercial use. In Switzerland, patents are issued for new inventions with commercial applications and are valid for up to 20 years from the date of registration. A concrete technical solution, such as an invention, process or technical application, is protected, not the idea. This protection requires you to first register with IPI, the European Patent Office or WIPO.

Patent infringement occurs when a patent-protected invention is used without the authorization of the owner, such as through manufacture, provision, sale, use or introduction. The deciding factor is not external impressions but rather whether the concrete technical design falls under the patent claims and whether usage is for commercial purposes.

Special care must be taken if you develop a product that is technically similar, source components or solutions from third parties, import products from abroad and distribute them in Switzerland or further develop existing products and retain central technical features. The closer in similarity the technical implementation, the greater the risk, which is why a careful patent search is a good idea.

Basically, whoever uses the patent-protected invention commercially without authorization – depending on the case, a manufacturer, dealer, importer or company that uses a process that infringes on the patent – can be held liable. Whether the liability falls to the company or a private person depends on the form of company selected.

The main focus is on claims under civil law, such as omission, removal, compensation and forfeiture of profits. Often, there are also costs for legal support, expert opinions, bans on sales or product adjustments. Intentional patent infringement may involve legal repercussions, such as fines or imprisonment, and the repercussions for acting for financial gain are even stricter.

A process often begins out of court with a warning, with usage quickly halted so a court case can be avoided. If no agreement can be reached, the dispute will be brought before the Swiss federal patent court which is the first instance for civil-law patent disputes. In addition, precautionary measures can be applied for in order to immediately stop infringement. During the main proceedings, the court reviews the protected area of the patent, the technical design of the infringed product and potential claims such as discontinuance or compensation.

Business legal protection insurance removes the burden from companies with regard to patent law conflicts by offering legal support in insured cases and reducing cost risks. Especially in the case of patent infringement, often not only attorney fees and court costs but also expenses for proceedings, expert opinions or out-of-court settlements are incurred. The right insurance coverage enables you to quickly deal with patent legal disputes.

A design (previously known as industrial design) is the visible form of a product or part of a product, i.e. not the idea behind it but the physical manifestation. In Switzerland the Federal Act on the Protection of Designs (DesA) applies. Some of the things that are protected are design, three-dimensional forms, two dimensional forms and patterns, lines, colors, surfaces and contours, materials and structures as well as the form of individual product components.

In order for the protection to step in, a design must be new and independent and have an aesthetically visible form. You must also submit it to the IPI and register it. Mere ideas and concepts, immaterial objects, purely technical functions, the means of manufacture and designs that are contrary to law, accepted morals or regulations are not covered.

Design infringement is the unauthorized use of a protected design, such as for manufacturing, sales, offerings or the introduction of an identical or very similar product. An infringement occurs when a third-party product creates the same overall impression as the protected design among informed users. Small differences are often insufficient if form, line, contour, color or material overall appear to be the same as the original. Intentional commercial design infringements are punishable, while the purely private use for non-commercial purposes is not.

Under civil law, the owner may request that usage is stopped immediately and demand compensation and information about the origin and distribution channels. Costs for recalls and destruction of stock are also possible. Depending on the case, there can be criminal repercussions such as fines or imprisonment of up to five years for design pirating or acting for commercial gain (Art. 41 Design Act).

If an infringement has occurred, a considered approach is recommended: See whether your design is registered and valid, gather evidence and contact your legal protection insurer. If you do not have legal protection insurance, you can engage a lawyer. Often, an out-of-court solution, such as a cease and desist notice or license, saves both time and money. If the infringing person fails to stop, civil or criminal steps will be considered.

Commercial legal protection insurance can free you from the legal and financial burden of design infringement, provided your policy covers this area. It will review your case, help you assess a warning or warning letter and support you with gathering evidence. Depending on your coverage, it can assume the costs of a lawyer for design law, court fees, expert opinions and negotiations with the infringing person.