232.121
English is not an official language of the Swiss Confederation. This translation is provided for information purposes only, has no legal force and may not be relied on in legal proceedings.
Ordinance
on the Protection of Designs
(Designs Ordinance, DesO)
of 8 March 2002 (Status as of 1 January 2017)
The Swiss Federal Council,
on the basis of Articles 20 paragraph 2, 23 paragraph 2, 24 paragraphs 2 and 4, as well as 27 paragraphs 2 and 3 of the Federal Act of 5 October 20011 on the Protection of Designs (DesA)
and on Article 13 of the Federal Act of 24 March 19952 on the Statute and Tasks of the Swiss Federal Institute of Intellectual Property,3
ordains:
1 The Swiss Federal Institute of Intellectual Property (IPI)4 is responsible for carrying out the administrative duties stipulated in the DesA5 and this Ordinance.
2 The Federal Customs Administration is responsible for enforcing Articles 46-49 DesA and Articles 37-40 of this Ordinance.
If a time limit is calculated in months or years, it shall end in the final month on the same date of the month as the date on which it started. If there is no such date, the time limit shall end on the final day of the final month.
1 Submissions to the IPI must be written in an official Swiss language.
1bis The official language chosen by the applicant at the time of filing is the language of the procedure.6
2 Where official documents of evidence are not written in an official language, the IPI may request a translation and a certificate confirming its accuracy. If the translation or certificate is not submitted despite being requested, the document of evidence will not be taken into account.
1 Where several persons apply to register a design or hold the right to a design (right holder), they must either designate one of them to whom the IPI may send all communications with effect for all of them, or they must appoint a joint representative.
2 If neither of these conditions have been met, the IPI shall designate a recipient in accordance with paragraph 1. If one of the other persons objects, the IPI shall request that all parties act in accordance with paragraph 1.
1 If an applicant or right holder is represented before the IPI, the IPI may request a written power of attorney.
2 Any person who has been authorised by the applicant or right holder to submit all declarations provided for in the DesA or in this Ordinance to the IPI and to receive communications from the IPI on their behalf shall be entered in the Register as a representative in accordance with Article 25. If the IPI is not explicitly notified of any restriction to the power of attorney, it is deemed comprehensive.
1 Submissions must be signed.
2 If a valid signature is missing from a submission, the original date on which it was submitted shall be recognised provided that a signed submission identical in content is subsequently submitted within one month of a request from the IPI.
3 The application for registration does not have to be signed. The IPI may designate other documents that do not require a signature.
1 The IPI may request proof where it has reasonable doubt concerning the accuracy of a submission.
2 The IPI shall disclose the reasons for its doubt, provide an opportunity to respond, and set a time limit for the submission of proof.
1 The IPI may authorise electronic communication.
2 It shall determine the technical details and publish them in an appropriate manner.
1 The official form or a form approved by the IPI must be used for filing the application for registration.
2 If an application is filed that is otherwise formally valid and contains all the information required, the IPI may waive the requirement to submit the form.
1 The application for registration shall include:
- a.
- the application to register the design;
- b.
- the surname and first name or the company name and the address of the applicant;
- c.
- the number of designs included in the filing;
- d.
- a reference number for each filed design;
- e.
- at least one representation of each filed design;
- f.
- information about the products for which the designs are to be used;
- g.12
- the surname, first name and domicile of the persons who created the design.
2 The application for registration must be supplemented, where applicable, with the following:
- a.13
- the address for service of the applicant in Switzerland;
- abis.14
- in the case of two or more applicants, the designation of the recipient in accordance with Article 4 paragraph 1 and their address for service where applicable;
- ater.15
- the name and address of the representative, where applicable, and their address for service in Switzerland;
- b.
- the declaration of priority in accordance with Article 23 of the DesA;
- c.
- the application for deferment of publication in accordance with Article 26 paragraph 1 of the DesA;
- d.
- a description of the design in up to 100 words in accordance with Article 19 paragraph 4 of the DesA; the text must be machine-readable.
3 If a deferment of publication is requested for a two-dimensional design in accordance with Article 26 of the DesA, a specimen of the design may be submitted in lieu of a representation (Art. 19 para. 3 DesA).
4 The representations shall be released for publication five working days after receipt of the application for registration provided that the IPI has not received an application for deferment of publication by that date.
1 The representations of the design must be suitable for reproduction.
2 A multiple application must not weigh more than 5 kg and may not exceed dimensions of 30cm in any direction, irrespective of the number of designs filed within the application.
1 The declaration of priority within the meaning of the Paris Convention of 20 March 188316 for the Protection of Industrial Property shall include the following information:
- a.
- the date of the first filing;
- b.
- the country in which the first filing was made;
- c.
- the countries for which the first filing was made.
2 The declaration of priority may relate to multiple first filings.
3 The priority document consists of a certificate of the first filing from the competent authority indicating the filing or registration number of the design. It may be submitted in English.
The right to priority shall lapse where:
- a.
- the declaration of priority is not made at the time of filing the design;
- b.
- the priority document is not submitted within the time limit set by the IPI.
The IPI will prepare a priority document for a Swiss first filing on request.
For postal items, the submission date is the date on which the item is delivered by Swiss Post to the IPI.
1 If the application for registration does not fulfil the formal requirements of Article 19 paragraph 1 and Article 20 of the DesA, as well as Article 9 and 10 of this Ordinance, the IPI shall set a time limit for the applicant to complete or correct the application.
2 If the applicant does not remedy the deficiency within the time limit, the IPI shall dismiss the application for registration in its entirety or in part.
1 If there are grounds for refusal as defined in Article 4 letters a, d or e of the DesA, the IPI shall set a time limit for the applicant to remedy the deficiency.
2 If the applicant does not remedy the deficiency within the time limit, the IPI shall refuse the application for registration in its entirety or in part. The IPI may set further time limits in exceptional cases.19
1 The registration fee must be paid within the time limit set by the IPI (Art. 19 para. 2 DesA).
2 The registration fee consists of:
- a.
- the basic fee;
- b.
- the publication fee, where applicable;
- c. and d.20 ...
3 ...21
4 If the registration is to be published after expiry of the deferment period, the publication fee must be paid prior to publication.22
1 If there are no grounds for dismissal or refusal and no deferment of publication has been requested, the IPI shall enter the design in the Register and publish the registration.
2 It will provide the right holder with confirmation of the registration.
1 The IPI may remind the right holder entered in the Register, or their representative, to pay the publication fee prior to the expiry of the deferment period.24
2 If the publication of a two-dimensional design has been deferred in accordance with Article 26 of the DesA, and a specimen of the design has been submitted in lieu of a representation, the IPI may issue a reminder to the right holder entered in the Register, or to their representative, to submit at least one representation of the design.25
3 In the case of multiple applications (Art. 20 DesA), protection may, on request, be renewed for individual designs after expiry of the deferment period.
4 If the publication fee is not paid by the last day of the deferment period, or if the required representations are not submitted two months at the latest prior to expiry of the deferment period, the IPI shall cancel the registration.
The IPI may remind the right holder entered in the Register, or their representative, about the date of expiry and the possibility of renewal before the expiry of the period of protection. The IPI may also send such notifications abroad.
1 The application for renewal must be submitted to the IPI within the last twelve months preceding the expiry of the period of protection, but no later than six months after its expiry.
2 In the case of multiple applications (Art. 20 DesA), renewal of protection may be limited to individual designs. In this case, those designs for which renewal is requested must be clearly specified.
3 The renewal fee must be paid within the time limits under paragraph 1. If the fee is paid after the expiry of the period of protection, a surcharge must be paid.27
4 The renewal takes effect on expiry of the previous period of protection.
5 The IPI shall provide the right holder with confirmation of the renewal of protection.28
If an application for renewal has been submitted and it does not result in the renewal of the term of protection, the renewal fee shall be reimbursed.
1 The IPI shall maintain a dossier in which the stages of the registration procedure and all entries in the Register are recorded.
2 Official documents of evidence that disclose manufacturing or trade secrets or contain other information that the applicant has a legitimate interest in keeping confidential shall be filed separately on request. This will be noted in the dossier.30
3 ...31
1 Prior to the entry of the design in the Register and during the period of deferment of publication, the dossier may be inspected by:
- a.
- the applicant and his or her representative;
- b.
- persons who prove that the applicant alleges that they have infringed the applicant's right to the filed design or has warned them of such an infringement;
- c.
- other persons with the express consent of the applicant or his or her representative.
2 The persons named in paragraph 1 may also inspect the files relating to applications for registration that have been withdrawn or rejected, or which the IPI has dismissed.
3 Anyone may inspect the dossier after the design has been entered in the Register, provided that the publication has not been deferred.
4 The IPI shall make a decision regarding the inspection of separately filed official documents of evidence in accordance with Article 22 paragraph 2 following consultation with the right holder.
5 On request, the files to be inspected shall be issued in the form of copies.32
1 The IPI shall retain the originals or copies of the files of completely cancelled register entries for five years following the cancellation.
2 The IPI shall retain the originals or copies of the files of applications for registration that have been withdrawn or rejected, or which have been dismissed by the IPI, for five years following the withdrawal, rejection or dismissal.
3 ...33
4 On request, the IPI shall return submitted design specimens to the right holder after expiry of the retention period. The request must be made prior to the expiry of the retention period.34
1 The entry of a design in the Register shall include:
- a.
- the filing number;
- b.
- the filing date;
- c.
- the surname and first name or the company name as well as the address of the right holder;
- d.
- the surname and address of the representative, where applicable;
- e.35
- the surname and domicile of the persons who created the design;
- f.
- information about the products for which the designs are to be used;
- g.
- a reference number for each filed design;
- h.
- the reproductions of the designs;
- i.
- the date of registration;
- j
- the date of publication.
2 Where applicable, the entry shall also include the following:
- a.
- information concerning the priority claim in accordance with Articles 22 and 23 DesA;
- b.
- an indication that the publication has been deferred;
- c.
- a description of the design.
3 The following shall also be entered in the Register:
- a.
- the renewal of the term of protection and the date on which the renewal comes into effect;
- b.
- the complete or partial cancellation of the registration with the reason for the cancellation;
- c.
- the complete or partial transfer of the design right;
- d.36
- the grant of a licence or sub-licence with the surname and first name or company name as well as the address of the person to whom the license is granted (licensee), and an indication as to whether it concerns an exclusive licence or a partial licence;
- e.
- the usufruct of the design right and pledging of the design right;
- f.
- restrictions on powers of disposal ordered by the courts and compulsory enforcement authorities;
- g.
- amendments concerning registered information.
4 The IPI may enter other information of public interest.
5 ...37
1 The entries in the Register, with the exception of entries whose publication has been deferred, are open for anyone to inspect.
2 The IPI shall issue extracts from the Register.38
3 ...39
1 The request for registration of the transfer must be made by the former right holder or the person who is acquiring the design right (acquirer).
2 It shall include:
- a.
- an express declaration by the former right holder or another satisfactory document showing that the design right is entirely or partially transferred to the acquirer;
- b.40
- the surname and first name or company name, the address of the person acquiring the design right and, where applicable, their address for service in Switzerland;
1 The request for registration of a licence must be made by the right holder or by the licensee.
2 It shall include:
- a.
- an express declaration by the right holder or another satisfactory document showing that the right holder authorises the licensee to use the design;
- b.
- the surname and first name or the company name as well as the address of the licensee;
- c.
- the request that the licence be registered as an exclusive licence where applicable;
- d.
- in the case of a partial licence, an indication of the licensed rights where applicable.
3 For the registration of a sub-licence, paragraphs 1 and 2 apply by analogy. In addition, it must be proven that the licensee is authorised to grant sub-licences.
4 If an exclusive licence is entered in the Register, no other licenses that are incompatible with the exclusive license will be entered in the Register for the same design.41
On the basis of an appropriate declaration by the right holder or another satisfactory document, the IPI shall register:
- a.
- the usufruct of the design right and pledging of the design right;
- b.42
- restrictions on powers of disposal ordered by the courts and compulsory enforcement authorities;
- g.
- amendments concerning registered information.
On request, the IPI shall cancel a right registered in favour of a third party if an express waiver or other satisfactory document is presented by the holder of this right.
1 Incorrect register entries shall be rectified without delay at the request of the right holder.43
2 If the error results from an oversight by the IPI, it shall be rectified ex officio.
1 The IPI shall cancel a design on its own initiative if, in the event of the deferment of publication, no representations are submitted (Art. 19 para. 3 DesA).
2 The IPI shall notify the right holder of the cancellation.
3 The cancellation of a design is free of charge.
Unless deferment of publication has been requested, the IPI shall publish:
- a.
- the registration of the design including the information under Article 25 paragraphs 1 letters a-h and 2;
- b.
- the information under Article 25 paragraph 3 and 4 where its publication appears appropriate.
1 The IPI shall determine the organ of publication.
2 On request and subject to a fee, it shall make paper copies of data that has only been published electronically.
The assistance provided by the Federal Customs Administration shall extend to the movement of unlawfully manufactured items into or out of the customs territory.
1 The right holder or the licensee entitled to initiate proceedings (applicant) must submit the application for assistance to the Directorate General of Customs.
1bis The Directorate General of Customs shall make a decision on the application no later than 40 days after receipt of the complete documentation.51
2 The application is valid for a period of two years unless a shorter period of validity is requested. It may be renewed.
1 If the customs office withholds items, it shall retain the items for a fee or shall place them in the custody of a third party at the cost of the applicant.52
2 It shall provide the applicant with the name and address of the declarant, holder or owner, a precise description and the quantity, as well as the sender of the withheld items in Switzerland or abroad.53
3 If it is established prior to the expiry of the time limit under Article 48 paragraph 2 or 3 DesA that the applicant is unable to obtain preliminary measures, the items shall be released immediately.
1 The applicant may request that the samples are handed over or delivered to them for examination or that the items are inspected. Instead of samples, the Customs Administration may provide the applicant with photographs of the withheld items if this enables the applicant to assess the items.
2 The request may be submitted together with the application for assistance to the Directorate General of Customs or, while the items are being withheld, directly to the customs office that is withholding the items.
1 The Customs Administration shall inform the declarant, holder or owner of the items of the possibility of refusing to take samples on presentation of a reasoned request. The Administration shall set a suitable time limit for him or her to submit the request.
2 If the Customs Administration permits the applicant to inspect the withheld items, it shall take appropriate consideration of the interests of the applicant and the declarant, holder or owner when determining the date of inspection.
1 The Customs Administration shall keep the samples collected for a period of one year starting from the date of notification of the declarant, holder or owner in accordance with Article 48 paragraph 1 DesA. After this time limit expires, the Customs Administration shall request the declarant, holder or owner to take possession of the samples or bear the costs of their continued safekeeping. If the declarant, holder or owner is not willing to do so or does not respond to this request within 30 days, the Customs Administration shall destroy the samples.
2 Instead of collecting samples, the Customs Administration may take photographs of the destroyed items, provided this serves the purpose of preserving evidence.
The fees for assistance provided by the Customs Administration are governed by the Ordinance of 4 April 200758 on Federal Customs Administration Charges.
The Ordinance of 27 July 190059 on Industrial Designs and Models is repealed.
The amendment of the current law is regulated in the Annex.
Time limits set by the IPI that are running on the day this Ordinance comes into force shall remain unchanged.
This Ordinance comes into force on 1 July 2002.
(Art. 42)
The legislation below is amended as follows:
...61
